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Cornell University 

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tine Cornell University Library. 

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the United States on the use of the text. 

The Doctrine of Judicial 



Of the Department of History and Politics, Princeton University 

"The history of lanu must be a 
history of Ideas." — Maitland 




Copyright, 1914, by 
Princeton University Press 

Published October, 1914 



To My Wife 


In the preparation of another volume, not yet pub- 
lished, I have encountered a number of questions 
involving controversies important to the student of 
American Constitutional History, an extended con- 
sideration of which however in those pages I felt 
to be out place. The following studies present my 
conclusions with regard to these questions, and the 
grounds of them. In the principal essay, I have en- 
deavored to present judicial review as the outcome of a 
view of legislative power which arose in consequence 
of the astonishing abuse of their pov/ers by the early 
State legislatures but which was first appreciated for 
its full worth by the Convention that framed the Con- 
stitution of the United States. Incidentally I have, 
I trust, laid to rest that most inconclusive "explana- 
tion" of judicial review which dwells on the idea that 
a legislative measure contrary to the constitution is 
not law and never was. The alleged explanation 
totally ignores the crucial question, which is. Why is 
it the judicial view of the constitution that legislative 
measures have to conform to? The article on the 
Dred Scott Decision treats of the most dramatic epi- 
sode in the history of judicial review, though one that 
is by no means the best illustrative of the spirit of the 
institution. The study entitled "We, the People," ap- 
proaches the time-honored controversy over Secession 
and Nullification from what is shown to be, I submit, 


the point of view of 1787. But the verdict arrived 
at with reference to the rights of the States in rela- 
tion to the Constitution is not without import for some 
present-day issues, as is shown in the paper on Some 
Possibihties of Treaty-Making. The paper on the 
Pelatiah Webster Myth deals with a question of less 
practical significance, but yet one of real ethical im- 
portance. For if history has any function to perform 
it is that of endeavoring at least to make correct assess- 
ment of the motives and services of men. 

In the preparation of this little volume I have be- 
come the debtor of Professor Evans Holbrook, editor 
of the Michigan Law Review, for valuable editorial as- 
sistance in putting the first study into final shape. My 
especial thanks are also due to Mr. Walter Cottrell of 
the Princeton University Library stafif and Mr. B. A. 
Finney of the University of Michigan Library for 
numberless courtesies. 

I should also take this occasion to point out to the 
reader that when the word "constitution" is capi- 
talized in the following pages it refers to the national 
Constitution, but that at other times it refers to this 
or that State constitution or signifies constitution in 
the generic sense. The distinction becomes at times of 
some importance. 

Edward S. Corwin. 
Ypsilanti, Michigan 

Sept. II, 1914 












What is the exact legal basis of the power of the 
Supreme Court to pass upon the constitutionality of 
acts of Congress? Recent Hterature on the subject 
reveals a considerable variety of opinion. There are 
radicals who hold that the power owes its existence 
to an act of sheer usurpation by the Supreme Court 
itself, in the decision of Marbury v. Madison.''- There 

* The principal historical studies on this subject are the fol- 
lowing: W. M. Meigs, The Relation of the Judiciary to the 
Constitution, 19 Am. Law Rev. 175-203 (1885); C. B. Elliott, 
The Legislatures and the Courts, 5 Pol. Sc. Qtly. 224-58 (1890) ; 
Brinton Coxe, Judicial Power and Unconstitutional Legislation 
(Phila., 1893) ; J. B. Thayer, The American Doctrine of Con- 
stitutional Law, 7 Harv. Law Rev. 129-56 ( 1894) ; E. S. Corwin, 
The Rise and Establishment of Judicial Review, 9 Mich. Law 
Rev. 102-25, 284-316 (1910-11) ; C. A. Beard, The Supreme 
Court and the Constitution (N. Y. 1912) ; J. H. Dougherty, 
Power of the Federal Judiciary over Legislation (N. Y., 1912) ; 
A. C. McLaughlin, The Courts, the Constitution, and Parties 
(Chicago, 1912) ; C. H. Burr, Unconstitutional Law and the 
Federal Judicial Power, 60 Univ. of Pa. Law Rev. and Am. 
Law Reg. 624-43 (1912) ; H. Pope, The Fundamental Law and 
the Courts, 27 Harv. Law Rev. 45-67 (1913) ; H. A. Davis, An- 
nulment of Tegislation by the SuipTeme Court, 7 Am. Pol. Sc. 
Rev. 541-87 (1913) ; C. G. Haines, The Am. Doctrine of Ju- 
dicial Supremacy ('N. Y., 1914) ; F. E. Melvin, The Judicial 
Bulwark of the Constitution, 8 Am. Pol. Sc. Rev. 167-203 


*See for example, H. L. Boudin in 26 Pol. Sc. Qtly. 238, or 
J. B. McDonough, Usurpation of Power by Federal Courts, 
46 Am. Law Rev. 45. 



are conservatives who point to clauses of the Consti- 
tution which, they assure us, specifically confer the 
power.^ There are legal writers who refuse to go back 
of Marbury v. Madison, content in the ratification 
which, they assert, subsequent events have given the 
doctrine of that decision.* There are historical writers 
who show that a considerable portion of the member- 
ship of the body that framed the Constitution are on 
record as having personally favored judicial review at 
one time or another, either before, during, or after the 
Convention.* Finally, there are other historical writers 
who represent judicial review as the natural outgrowth 
of ideas that were common property in the period when 
the Constitution was established.' Both these last 
views I find to be in themselves correct enough, but 
with the result of disclosing some more fundamental 
problems. For the question is not, what did the 
framers of the Constitution hope or desire with refer- 
ence to judicial review, but what did they do with 
reference to it; and before ideas contemporary with 
the framing of the Constitution can be regarded as 
furnishing the legal basis of judicial review, it must 
be shown that they were, by contemporary understand- 

' Brinton Coxe and J. H. Dougherty, above. 

' This seems to 'be the position, for example, of Prof. James 
Parker Hall, in his Constitutional Law and of Mr. Cotton in 
his Introduction to his Decisions of John Marshall. 

' Meigs, Elliott, Beard, Burr, MeMn, above. Mr. Melvin's 
researches into this subject are the most thorough. His arti- 
cle is also valuable for the account it gives of the growth in 
the Convention of the articles of the Constitution touching 
judicial power. 

° The present writer in above cited articles and McLaughlin, 
The Courts, etc. 


ing, incorporated in the Constitution for that purpos^ 
and that they were logically sufficient for it. To in- 
vestigate these questions is the purpose of the study 
to follow. 

The position of those who are content to rest the 
power of the Supreme Court over acts of Congress 
upon Marbury v. Madison'^ is plainly illogical. For 
either that decision was based upon the Consititution 
or it was not. In the former case, however, it is the 
Constitution that is the real basis of the power, while 
in the latter the decision was erroneous by the court's 
own premises. Still it is urged that whatever the 
defects of the original decision, these have long since 
been cured by popular acquiescence and later decisions. 
Let me then begin this article by showing some diffi- 
culties in the way of this view. 

The case of Marbury v. Madison arose upon an ap- 
plication by plaintiff to the Supreme Court for a writ 
of mandamus to the Secretary of State to compel him 
to deliver a commission authorizing plaintiff to exer- 
cise the functions of an office to which be had been 
duly appointed. The court, reversing the usual order 
of procedure,®" went first into the merits of the ques- 

"i Cr. 137 (1803). 

'" "As the first question which this motion presents is one 
of the jurisdiction and power of this court to grant the writ 
prayed for in this case, it will be following the rule estab- 
lished to consider it first; a rule which ought never to be dis- 
regarded where a question of power arises": J. Baldwin in 
5 Pet. 190, 200, citing i Cr. 91, 3 Cr. 172, 5 Cr. 221, 9 Wheat. 
816, ID Wheat. 20. 


tion and from its review of these came to the con- 
clusion that a mandamus, had it been sought in a 
tribunal having jurisdiction of the case, would un- 
doubtedly have been the proper remedy. But this, it 
contended, had not been done. For though § 13 of 
the Act of 1789 purported to authorize the Supreme 
Court to issue "writs of mandamus in cases war- 
ranted by the principles and usages of law to . . . 
persons holding office under the authority of the 
United States,"'^ this provision transgressed Article 
III, § 2, par. 2, of the Constitution, the words of which 
describing the original jurisdiction of the Supreme 
Court must be interpreted as negativing any further 
power of the same order. Thereupon the court pro- 
nounced §13 null and void, and dismissed the case 
for want of jurisdiction. 

Inevitably, the first question raised by Marshall's 
decision is as to the correctness of his construction 
of Article III, § 2, par. 2. In support of his position 
the Chief Justice might have quoted, had he chosen, 
the Federalist,* but against him were: first, the im- 
portant evidence of the legislative provision over- 
turned, showing congressional opinion practically 
contemporaneous with the Constitution; secondly, the 
fact that anterior to Marbury v. Madison the court 
itself had repeatedly taken jurisdiction of cases 
brought under that provision;" and thirdly, the fact 
that in other connections affirmative words of grant 

'For the Act of 1789, see i Statutes at Large 85 ffg. (24 Sept. 
1789, c. 20). 
'Federalist No. 81 (Lodge's Ed., p. 507). 
° See argument of counsel in i Cr. 137-53. 


in the Constitution had not been deemed to infer a 
correlative negative. Thus, were the rule laid down 
in Marbury v. Madison to be followed, Congress 
would have power to enact penalties against only the 
crimes of counterfeiting, treason, and piracy and of- 
fences against the Law of Nations, whereas in fact 
it had, even as early as 1790, enacted penalties against 
many other acts, by viftue of its general authority 
under the "necessary and proper" clause.^" 

Yet it must be admitted that the rule of exclusive- 
ness does often apply to cases of affirmative enumer- 
ation, so that the only question is whether Article III, 
§ 2, par. 2, furnished such a case. Speaking to this 
point, the Chief Justice said: "A negative or ex- 
clusive sense musit be given them [the words of the 
paragraph in question] or they have no operation at 
all."^^ But this is simply not so. For though given 
only their affirmative value, these words still place the 
cases enumerated by them beyond the reach of Con- 
gress, — surely no negligible matter. Nor does the 
Chief Justice's attempt to draw support from the fur- 
ther words of the same paragraph fare better upon 
investigation. "In all other cases," he quotes, the 
Supreme Court is given appellate jurisdiction, that is, 
as he would have it, merely appellate jurisdiction. 
Unfortunately for this argumtot the words thus 
pointed to are followed by the words — which the 
Chief Justice fails to quote — "with such exceptions 
... as the Congress shall make." Why, then, should 
not the exceptions thus allowed to the appellate juris- 

'"i Stat. L. 112 ffg. (Apr. 30, 1790). 
" I Cr. 174. 


diction of the Supreme Court have been intended to 
take the form, if Congress so willed, of giving the 
court original jurisdiction of the cases covered by 

Moreover, the time was to come when Marshall 
himself was to abandon the reasoning underlying the 
rule laid down in Marbury v. Madison. This rule, to 
repeat, was that the Supreme Court's original juris- 
diction is confined by the Constitution to the cases 
specifically enumerated in Article III, § 2, par. 2, 
and — though this was only dictum — that the court's 
appellate jurisdiction is confined "to all other cases." 
But now it must be noted that jurisdiction is always 
either original or appellate, — that there is, in other 
words, no third sort. The rule laid down in Marbury 
V. Madison becomes therefore the logical equivalent of 
the proposition that ithe Supreme Court had only orig- 
inal jurisdiction of the cases enumerated in Article 
III, § 2, par. 2. In Cohens v. Virginia^'^ nevertheless 
the court took jurisdiction on appeal of a case which 
had arisen "under this Constitution," but was also a 
case to which a State was party, on the basis of the 
rule, as stated by the Chief Justice, that "Where the 
words admit of appellate jurisdiction the power to 
take cognizance of the suit originally does not neces- 
sarily negative the power to decide upon it on an ap- 
peal, if it may originate in a different court."^^ And 
in further illustration of this rule, the Chief Justice 
instanced the right of the Supreme Court to take 
jurisdiction on appeal of certain cases which foreign 

^=6 Wheat. 264 (1821). 
'"lb- 395-402. 


consuls were allowed to institute in the lower federal 
courts." He also insisted, and quite warrantably, 
upon the necessity of the rule in question to major 
purposes of the Constitution. Yet obviously if the 
rule is to be harmonized with that laid down in Mar- 
bury V. Madison, it must be by eliminating the word 
"all" from the opening clause of Article III, § 2, par. 
2, and by inserting qualifying words in front of the 
word "those" of the same clause. Otherwise the line 
of reasoning taken in Marbury v. Madison is aban- 
doned and the precise decision there left hanging in 
mid-air. ^^ 

Suppose however, we concede Marshall his con- 
struction of Article III, is his decision absolved of 
error thereby? By no means. This decision rests 
upon the assumption that it was the intention and 
necessary operation of § 13 of the Act of 1789 to 
enlarge the original jurisdiction of the Supreme Court, 
and this cannot be allowed. To begin with, in Com- 
mon Law practice, in the light of which § 13 was 
framed, the writ of mandamus was not, ordinarily at 
least, an instrument of obtaining jurisdiction by a 
court, even upon appeal, but like the writs of habeas 
corpus and injunction, was a remedy available from a 

" The validity of such appeals was considefSn by C. J. Taney 
in Gittings v. Crawford, Federal Cases, 5,465. Referring to 
the precise clause, under discussion in Marbury v. Madison, 
Taney said : "In the clause in question there is nothing but 
mere affirmative words of grant, and none that import a design 
to exclude the subordinate jurisdiction of other courts of the 
United States on the same subject-matter." See also C. J. 
Waite's language in Ames v. Kansas, ill U. S. 449. 

^° The precise precedent in Marbury v. Madison has been 
applied several times. See 5 How. 176, i Wall. 243, 8 Wall. 85. 


court in the exercise of its standing jurisdiction. 
This being the case, however, why may it not have 
been the intention of Congress in enacting § 13, not 
to enlarge the Supreme Court's jurisdiction, but 
simply to enable the court to issue the writ of man- 
damus to civil officers of the United States as 
auxiliary to the original jurisdiction which the Con- 
stitution conferred upon it? It is certain that the 
court has more than once entertained motions by 
original suitors for injunctions to such officers,^® and 
it is apparent thait, so far as the question here dis- 
cussed is concerned, an application for a writ of man- 
damus must rest on the same footing.^''' 

Furthermore, the proposition that the writ of man- 
damus is not to be regarded ordinarily as a means of 
obtaining jurisdiction, but only of exercising it, was 
recognized and applied by the Supreme Court itself 
a few years later, in a case the exact parallel of 
Marbury v. Madison. By § 14 of the Act of 1789 the 
circuit courts of the United States were given the 
power, in words substantially 'the same as those em- 
ployed in § 13, to issue certain writs "in cases author- 
ized by the principles and usages of law." Yet in 
Mclntire v. Wood,^^ where the issue was the validity 
of a writ of mandamus to a person holding office 

'"Mifj. V. Johnson, 4 Wall. 47s; Ga. v. Stanton, 6 Wall. 50. 
The grounds on which these cases were dismissed do not affect 
the view urged in the text. 

" Suppose Congress should transfer the business of interstate 
extradition to federal commissioners, as it would be within its 
power to do, there would be plenty of occasions when the Su- 
preme Court would be asked for writs of mandamus to civil 
officers of the United States. See Ky. v. Dennison, 24 How. 65. 

''7 Cr. S04 (1813). 


under the authority of the United States the Supreme 
Court ruled that before a circuit court could utilize 
the power given it in § 14 in a case, it must have 
jurisdiction of the case on independent grounds, and 
the same rule was later reiterated in McClung v. Silli- 
man}^ But clearly, had the court followed this line 
of reasoning in Marbury v. Madison, it could not have 
questioned the validity of § 13. Indeed, had it but 
followed the, today at any rate, well-known maxim of 
Constitutional Law that of two possible interpreta- 
tions of a statute, the one harmonious with the Con- 
stitution, the other at variance with it, the former 
must be preferred,^° it could not have challenged the 
legislation in question. \ By its view of Article III, 
§ 2, par. 2, it must still doubtless have declined juris- 
diction of the case, but the ground of its action would 
have been, not the error of Congress, but the error of 

In short there was no valid occasion in Marbury v. 
Madison for any inquiry by the court into its preroga- 
tive in relation to acts of Congress. Why then, it 
will be asked, did the court make such an inquiry? 
In part the answer to this question will appear later, 
but in part it may be answered now. To speak quite 
frankly, this decision bears many of the earmarks of 
a deliberate partisan coup. The court was bent on 
reading the President a lecture on his legal and moral 
duty to recent Federahst appointees to judicial office, 
whose commissions the last Administration had not 

"6 Wheat. 598 (1821). 

="For a rather far-fetched application of this rule see the 
"Commodities Clause" Case, 213 U. S. 366 (igo8). 


had time to deliver, but at the same time hesitated to 
invite a snub by actually asserting jurisdiction of the 
matter. It therefore took the engaging position of 
declining to exercise power which the Constitution 
withheld from it, by making the occasion an oppor- 
tunity to assert a far more transcendent power. 


But from Marbury v. Madison we proceed to the 
question whether, and in what yray, the Constitution 
itself sanctions judicial review, fl have already indi- 
cated my opinion that no clause was inserted in the 
Constitution for the specific purpose of bestowing this 
power on courts, but that the power rests upon certain 
general principles thought by its framers to have been 
embodied in the Constitution. I shall now endeavor 
to justify this opinionr) 

That the members of the Convention of 1787 
thought the Constitution secured to courts in the 
United States the right to pass on the validity of acts 
of Congress under it cannot be reasonably doubted. 
Confining ourselves simply to the available evidence 
that is strictly contemporaneous with the framing and 
ratifying of the Constitution, as I think it only proper 
to do, we find the following members of the Conven- 
tion that framed the Constitution definitely asserting 
that this would be the case: Gerry and King of 
Massachusetts, Wilson and Gouverneur Morris of 
Pennsylvania, Martin of Maryland, Randolph, Madi- 
son, and Mason of Virginia, Dickinson of Delaware, 
Yates and Hamilton of New York, Rutledge and 
Charles Pinckney of South Carolina, Davie and Wil- 


liamson of North Carolina, Sherman and Ellsworth 
of Connecticut.^^ True these are only seventeen 
names out of a possible fifty-five, but let it be con- 
sidered whose names they are. They designate fully 
three-fourths of the leaders of the Convention, four 
of the five members of the Committee of Detail which 
drafted the Constitution,^^ and four of the five mem- 
bers of the Committee of Style which gave the Con- 
stitution final form.^* The entries under these names, 
in the Index to Farrand's Records occupy fully thirty 
columns, as compared with fewer than half as many 

^ Max Farrand, Records of the Federal Convention (Yale 
Univ. Press, 1913) ; I, 97 (Gerry), log (King) ; II, 73 (Wilson), 
76 (Martin), 78 (Mason), 299 (Dickinson and Morris), 428 
(Rutledge), 248 (Pinckney), zi^ (Williamson), 28 (Sherman, 
93 (Madison); III, 220 (Martin, in "Genuine Information"). 
The Federalist: Nos. 39 and 44 (Madison), No. 78 (Hamilton). 
Elliot's Debates (Ed. of 1836); II, 1898-9 (Ellsworth), 417 and 
4S4 (Wilson), 336-7 (Hamilton); III, 197, 208, 431 (Randolph), 
441 (Mason), 484-S (Madison); IV, i6s (Davie). P. L. Ford, 
Pamphlets on the Constitution, 184 (Dickinson, in "Letters of 
Fabius")- Ford, Essays on the Constitution, 295 (Yates, writing 
as "Brutus"). Pinckney later, in 1799, denounced the idea of 
judicial review, thus : "On no subject am I more convinced 
than that it is an unsafe and dangerous doctrine in a republic 
ever to suppose that a judge ought to possess the right of 
questioning or deciding upon the constitutionality of treaties, 
laws, or any act of the legislature. It is placing the opinion of 
an individual, or two, or three, above that of both branches of 
Congress, a doctrine which is not warranted by the Constitution, 
and will not, I hope, long have any advocates in this country"; 
quoted from Wharton's State Trials, 412, by Mr. Horace A. 
Davis in Am. Polit. Sc. Rev., 551. Madison's later views are 
considered infra. 

^Gorham, Rutledge, Randolph, Ellsworth, and Wilson. The 
argument is from Professor Beard's Supreme Court, etc. 

^Johnson, Hamilton, Morris, Madison, and King. 


columns under the names of the remaining members. 
We have in this list, in other words, the names of men 
who expressed themselves on the subject of judicial 
review because they also expressed themselves on all 
other subjects before the Convention. They were the 
leaders of that body and its articulate members. And 
against them are to be pitted, in reference to the ques- 
tion under discussion, only Mercer of Maryland, Bed- 
ford of Delaware, and Spaight of North CaroHna, the 
record in each of whose cases turns out to be upon 
inspection of doubtful implication. For while 
Spaight, for instance, undoubtedly expressed himself, 
during the period of the Convention, as strongly ad- 
verse to the theory of judicial review,^* yet he later 
heard the idea expounded both on the floor of the 
Philadelphia Convention and the North Carolina con- 
vention without protest. The words of Bedford which 
are relied upon in this connection are his declaration 
that he was "opposed to every check on the legisla- 
ture." But these words were spoken with reference, 
not to judicial review, but to the proposition to estab- 
lish a council O'f legislative revision.^^ Mercer of 
Mai-yland did not sign the Constitution and opposed 
its adoption. It is by no means impossible that one of 
the grounds of his opposition was recognition of the 
fact that the Constitution established judicial review.^® 
Altogether it seems a warrantable assertion that on 
no other feature of the Constitution with reference 

^■See McRee, Life and Correspondence of James Iredell, II, 
^ Farrand, I, 100, 106, 
'"/&. II, 298, 


to which there has been any considerable debate is the 
view of the Convention itself better attested. 

Yet it must be admitted that, if we assume that the 
Convention did not finally incorporate its view in 
specific provisions of the Constitution, a difficulty that 
at first seems formidable opposes itself to the thesis 
that this view was secured by certain general princi- 
ples thought to be embodied in the Constitution. The 
source of the difficulty I allude to is Article VI, par. 
2, of the Constitution. This paragraph first announces 
the supremacy of the Constitution, the acts of Con- 
gress in pursuance thereof, and treaties made under 
the authority of the United States, as law of the land, 
and then proceeds to impose a specific mandate upon 
State judges to enforce this supreme law, anything in 
the law or constitution of any State to the contrary 
notwithstanding. The question therefore arises, Why 
did the Convention, if it believed general principles 
sufficient to secure judicial review of acts of Congress, 
deem it necessary to order the State judges to prefer 
what was described as supreme law of the land to 
subordinate law? Any doctrine of judicial review 
must rest in part upon the idea of one law superior 
to another, and if, to repeat the question just put, the 
fact of superiority of national law to State law fur- 
nished, in the estimation of the Convention, an insuffi- 
cient security of the former as against the latter, why 
should not the analogous superiority of the Constitu- 
tion itself to acts of Congress be similarly insufficient? 
But the answer to this question is, after all, plain 
enough: The judges to whom the mandate of Article 
V'l is addressed are State judges, that is, judges of 


an independent jurisdiction. Their duty to tal<e cog- 
nizance of national law at all had therefore to be de- 
clared in unmistakable terms. Indeed, once this fact 
is grasped, it is seen that the mandate in question, 
instead of opposing difficulty to the thesis I am pre- 
senting, furnishes it powerful confirmation. For the 
significant feature of that mandate now becomes the 
fact that it is addressed to State judges, who are thus 
assumed to be the final guardians of both State laws 
and State constitutions. 

What, however, are the clauses usually represented 
as having been placed in the Constitution for the pur- 
pose of giving the Supreme Court the power to pass 
upon the validity of acts of Congress? One is the 
"pursuance" clause of Article VI, par. 2. But ob- 
viously this clause, while perhaps making more ex- 
plicit the fact that Congress' is a limited power, says 
nothing as to what agency is to say finally what of 
Congress' acts are, and what are not, "in pursuance of 
this Constitution." Moreover, the "pursuance" clause 
does not appear in Article III, which deals with the 
judicial power of the United States. 

A clause more insisted upon, however, in this con- 
nection is the clause in this same Article III : "The 
judicial power of the United States shall extend to 
all cases arising under this Constitution." No doubt 
it must be allowed that cases involving the question of 
constitutionality with reference to acts of Congress 
are describable as "cases arising under this Constitu- 
tion." Nevertheless, it must be insisted that the clause 
just quoted was not placed in the Constitution for 
the purpose of bringing such cases within the judicial 


power of the United States, and this for the simple 
reason that they were ah'eady there. As we have just 
noted, the "pursuance" clause does not appear in 
Article III. But what this signifies is that the judicial 
power of the United States extends to every act of 
Congress whether made in pursuance of the Consti- 
tution or not, that — to quote the words of Chief Justice 
Taney in Ahleman v. Booth — it "covers every leg- 
islative act of Congress, whether it be made within the 
limits of its delegated power or be an assimiption of 
power beyond the grants in the Constitution."^'' Had, 
therefore, the clause "arising under this Constitution" 
been inserted to extend the judicial power of the 
United States to cases involving the constitutionality 
of acts of Congress, it would be so far forth mere 

The explanation of the clause must then be sought 
in a class of cases to which but for it the judicial 
power of the United States would not extend. Nor, 
relying upon the guidance of Hamilton in the Feder- 
alist is it difficult to discover such a class of cases. 
Construing the clause under discussion in Federalist 
80, Hamilton explains that it refers to cases arising in 
consequence of State enactments transgressing prohi- 
bitions of the Constitution upon State legislative 
powers, cases which, therefore, but for this clause, 
would terminate in the State judiciaries. Hamilton's 
explanation is confirmed by Madison's analysis of 
Article HI in the Virginia conventions^ and by Davie's 
language in the North Carolina convention."* 

^'21 How. S06, 519-20 (1858). 
-» Elliot, III, 484-s. 
=°/&. IV, 165. 


But a more vital consideration is that the "arising" 
clause does not, unless we take a certain view of the 
Constitution and of judicial power under it, confer 
upon the federal courts the power to- pass finally upon 
the validity of even State laws under the Constitu- 
tion, — finally, that is, as against Congress, which has 
the power to pass all laws "necessary and proper" to 
carry its enumerated powers into effect and whose 
laws passed by warrant of this power are paramount 
to all conflicting State laws or constitutions.^^" The 
purpose of the clause is merely to define the jurisdic- 
tion of the federal courts. The "judicial power" of 
the United States, it says, shall extend to certain 
classes of "cases." But as to what that power is, what 
are its intrinsic nature and scope, it says not a word. 

Nor is the list of objections yet exhausted to rest- 
ing the power of the Supreme Court over acts of Con- 
gress upon the phrases under discussion. For one 
thing, it may be asked, if these phrases are necessary 
to give the federal courts power to pass upon the con- 
stitutionality of acts of Congress, what becomes of 
the similar pretension of State courts with reference 
to State legislation under the State constitutions, from 
which these or equivalent phrases are usually absent? 
Again, it may be asked, how, upon this assumption, 
is the fact to be explained that most of the advocates 
of judicial review in the Convention of 1787 had de- 
clared their belief that this power would reside in the 
national courts long before they had heard or thought 
of these clauses? Finally, it may be asked why, if 
the framers wanted judicial review and still thought 
"'"' See particularly Fed. 33 (Lodge's Ed.). 


it necessary to provide for it specifically, did they not 
choose language apt for the purpose, language as ex- 
plicit and unmistakable as that describing, for ex- 
ample, the veto power of the President? A possible 
answer would be, of course, that they desired to con- 
ceal their intentions at this point, but the fact is, that 
they proclaimed them and that judicial review was 
universally regarded as a feature of the new system 
while its adoption was pending. 

. 30 


In short, we are driven to the conclusion that ju- 
dicial review was rested by the framers of the Con- 
stitution upon certain general principles which in their 
estimation made specific provision for it unnecessary, 
in the same way as, for example, certain other gen- 
eral principles made unnecessary specific provision for 
the President's power of removal. ^^ What, then, are 
these general principles? The task of identifying 
them is, perhaps, at this date not an entirely simple 
one. For while the ideas that are essential to ex- 
plaining and sustaining judicial review as a matter 
of law, which are the ideas we are in quest of, are 
relatively few, they have to be sifted from a more 
considerable stock of ideas which contributed to the 
rise of judicial review, as a matter of fact, or which 
have since been offered with the aim of curtailing its 
practical operation. It will be profitable to begin by 

'" See note at the end of this article, on Judicial Review in 
the Ratifying Conventions. 

'' The parallel is exact. See Annals of Congress, I, cols. 473 
ffg. and especially cols. 481-2, 


criticising some remarks of Professor McLaughlin, 
made in the course of his recent interesting study of 
the subject. 

At the outset of his essay, writing with Marshall's 
argument in Marbury v. Madison in mind, Professor 
McLaughlin states the doctrine of judicial review as 
follows : "In theory any court may exercise the power 
of holding acts invalid; in doing so, it assumes no 
special and pecuhar role; for the duty of the court is 
to declare what the law is, and, on the other hand, 
not to recognize and apply what is not law." Further 
along, however, he sets himself the task of refuting 
the idea that the courts claim a superiority over the 
other departments in relation to the constitution, and 
we then find him writing thus : "This authority then 
in part arose . . . from the conviction that the courts 
were not under the control of a coordinate branch of 
the government but entirely able to interpret the con- 
stitution themselves when acting in their own field." 
And from this it is quite logically deduced that, "If 
our constitutional system at the present time includes 
the principle that the political departments must yield 
to the decisions of the judiciary on the whole question 
of constitutionality, such principle is the result of 
constitutional development, and ... of the acqui- 
escence of the political powers, because of reasons of 
expediency." Yet at the same time it is conceded 
that the political departments must "accept as final" 
"the decision of the court in the particular case." 
Finally, it is urged that "no one is bound by an un- 
constitutional law."*^ 

'"' The Courts, the Constitution, and Parties, pp. 6, 51, 55, 56. 


In other words, Professor McLaughlin presents the 
right of interpreting the constitution that is enjoyed 
by the courts, first, as a judicial power, and therefore 
one to be exercised by courts as such; secondly, as a 
departmental or official function, and therefore one 
to be exercised by all departments of government 
equally, including the courts; and thirdly, as an indi- 
vidual prerogative, and therefore one belonging to 
everybody, including judges. In the first place, there 
is an element ai inconsistency among these three 
theories that should not escape our attention. For if 
the power of the judiciary to construe the constitu- 
tion, when acting in its own field, owes anything by 
way of theoretical justification — which is the point 
under discussion — ^to its position as an independent 
branch of the government, why is it necessary to insist 
on the legal character of the constitution and the 
duty of courts to interpret the law? Likewise, if the 
position of the judiciary as an equal and coordinate 
branch of the government, or of judges as govern- 
mental functionaries, is an indispensible foundation 
of judicial review, why is it necessary to contend that 
"no one is bound by an unconstitutional act" ? 

But a more important criticism is that the two' last 
theories are either quite unallowable or totally insuf- 
ficient to explain judicial review. Let us consider, 
first, the statement that "no one is bound by an un- 
constitutional law." This may mean one of two 
things : either that no one is bound by a law that has 
been determined by proper authority to be unconsti- 
tutional, which leaves open the crucial question as to 


where this jiroper authority resides ; or, that no one 
is bound by a law which he thinks is unconstitutional, 
which is nonsense. It is not open to contradiction that 
judicial review posits a constitutional system, com- 
plete in all points, and furnished with the machinery 
for determining all questions that arise out of it. But 
the right of revolution is a right external to any con- 
stitution, and therefore to invoke it as a means of set- 
tling constitutional questions is to discard the con- 
stitution at the outset.^^ 

And similarly is the doctrine that the power to 
construe the constitution is a departmental function 
allowable or unallowable according as one understands 
it. If what is meant by it is that all functionaries of 
government have to interpret the constitution prelimi- 

'^Vatte^s Apothegm that the legislature cannot "change the 
constitution without destroying the foundation of its authority" 
was a commonplace in Massachusetts before the Revolution; 
see the Massachusetts Circular Letter of 1768 in MacDonald, 
Documentary Source Book, 146-50. For interesting statements 
basing judicial review on the right of revolution, see Elliot, 
II, 100-06 (Parsons in the Massachusetts convention), and IV, 
93-4 (Steele in the North Carolina convention) ; also note 58, 
below. In confirmation of the view set forth in the text, that 
judicial review is not a revolutionary function, are the follow- 
ing words by Curtis, Const'l Hist. II, 13 (Ed. of 1890) : "The 
government of the U. S. has no prerogative which entitles it 
to be exempt from revolution, when the people choose to resort 
to that desperate remedy. It must defend its rightful existence 
and authority by the means with which the Constitution has 
clothed it. But the right to resort to revolution against in- 
tolerable cuppression is governed by no law. The right to find 
relief against an act of Congress which transcends its con- 
stitutional powers springs from and is regulated by the Consti- 
tution itself. It is a right that can be exercised only by 
resorting to a judicial remedy." 


nary to performing their supposed duties under it, in 
the same way that the private citizen has to interpret 
the ordinary law whenever he performs an act hav- 
ing legal consequences — why the theory is correct 
enough, but perhaps hardly necessary. On the other 
hand, if what is meant is that the three departments 
have an equal right, when acting within their respec- 
tive spheres, to determine the validity of their own 
acts, then it is untrue. 

But the second meaning is in fact, as we shall see 
later, the meaning which was attached to the doc- 
trine by those who brought it forth, not to support 
judicial review hut to arrest it. And this is still its 
meaning in the classic statement of it in President 
Jackson's famous Veto Message of July 10, 1832. 
Said the President on that occasion : 

"The Congress, the Executive, and the Court must 
each for itself be guided by its own opinion of the Con- 
stitution. Each public officer who takes an oath to sup- 
port the Constitution swears t)hat he will support it as 
he understands it, and not as it is understood by others. 
. . . The opinion of the judges has no more authority 
over Congress than the opinion of Congress has over the 
judges; and, on that point, the President is independent 
of both."^'* 

The day following the appearance of the message, 

Webster replied to it, on the floor of the Senate, in 

the following terms : 

"The President is as much bound by the law as any 
private citizen. ... He may refuse to obey the law and 
so may any private citizen, but both do it at their own 
peril and neither can settle the question of its validity. 

^J. D. Richardson, Messages and Papers of the Presidents, 
II, S82. 


The President may say a law is unconstitutional, but he 
is not the judge. ... If it were otherwise, there would 
be not government of laws, but we should all live under 
the government, the rule, the caprices of individuals; 
. . . The President, if the principle and reasoning of the 
message be sound, may either execute or not execute the 
laws of the land, according to his sovereign pleasure. 
He may refuse to put into execution one law, pronounced 
valid by all branches of government, and yet execute 
another which may have been by constitutional authority 
pronounced void." The message converted "constitu- 
tional limitations of power into mere matters of opin- 
ion," denied "first principles," contradicted "truths 
heretofore received as indisputable," denied "to the ju- 
diciary the interpretation of the law." 

And Webster elsewhere inquired, with pertinent refer- 
ence to a then impending issue: "Does nullification 
teach anything more revolutionary?"^^ 

But indeed, Professor McLaughlin too urges that 
the political departments are obliged "to accept as 
final . . . the decision of the court in the particular 
case." Yet he also contends that further acquiescence 
by these departments in the views of the judiciary on 
constitutional questions is not required by constitu- 
tional theory, but must be reckoned as "accommoda- 
tion" on their part based on reasons of expediency. 
The significance of this view all hinges on the mean- 
ing of the word "decision" in the phrase "decision of 
the court in the particular case." This may mean 

°° Speech of July ii, 1832; speech of Oct. 12, 1832, before the 
Whig convention at Worcester, Mass.: Works, II, 122 (Na- 
tional Ed.). The logical implications of Jackson's doctrine were 
soon illustrated. At the close of this year the Sup. Ct. rendered 
its decision in Worcester v. Ga., 6 Pet. SiS, which the Pres. re- 
fused to enforce, saying : "John Marshall has made his decision, 
now let him enforce it" : Greeley, Am. Conflict, I, 106. 


merely the judgment of the court on the question of 
rights at issue between the parties to the case or it 
may mean, where the judgment is based on the nullity 
of an act of the legislature, the court's determination 
that the act was null, or, even more broadly, the 
reasons given by the court for this determination. To 
discuss the last meaning would take us too far afield, 
and is unnecessary. For even if we take the second 
meaning as the correct one, the right of the court to 
pass finally on the validity of the acts of the legis- 
lature as these come before it is admitted, and the 
doctrine of departmental construction of the consti- 
tution is quoad hoc abandoned. 

But it may have been Professor McLaug-hlin's in- 
tention to voice acceptance of a theory which has the 
support of Bancroft, Meigs, and other authorities, 
and which, stated in its clearest form, runs thus : 

"The judicial power extends to- the determination of 
'cases,' not questions. . . . There is no power in the 
courts to annul an act of Congress, but only to decide 
"cases'. . . . There is no power anywhere to annul an 
act because deemed unconstitutional. The President may 
declare that, in his opinion, an act is void because un- 
constitutional, and refuse to enforce it; and so may the 
courts; but neither can control the other. . . . The ju- 
diciary can no more annul an act of Congress on the 
ground of its unconstitutionality than Congress can set 
aside a decree of the courts because without 

"R. G. Street, 6 Reports of Am. Bar Assoc, 184-6. Ban- 
croft's view is to be found on page 350 of volume VI of his 
History (Last Revision), thus: "The decision of the court in 
all cases within its jurisdiction is final between the parties tO' 
a suit and must be carried into effect by the proper officers ; but 
as an interpretation of the Constitution, it does not bind the 


Obviously the question raised by this theory is as 
to the correctness of the view it states of the scope 
of judicial duty. The courts, it is said, decide cases, 
and it is thence concluded that the other departments 
must support them in the exercise of their constitu- 
tional prerogative. This definition of the scope of 
judicial duty is, however, erroneous. It is not the 
duty nor yet the power of courts to decide cases, but 
to decide them in accordmtce with the law, of which 
the constitution is part and parcel; and if the other 
departments are bound by their decisions it is because 
they are presumed by the constitution itself to be in 
accordance with the constitution and laws. Other- 
wise, we should be confronted with the solecism of 
those sworn to support the constitution obliged by it 
to promote its violation on occasion. The courts then 
must ascertain the meaning of the constitution and 
laws, from which it would seem to follow that those 
who are bound by the constitution are bound by the 
judicial view of it in the same general sense as that 
in which those bound by the ordinary law are bound 
by the judicial view of it. In neither case does the 
judicial view attempt to constrain opinion but it does 
set the standard of acts when these fall within ju- 
dicial cognizance. 

But not only does the theory under discussion land 
us in paradox, but it is contrary to fact. The fact of 
the matter is that the courts do annul legislative acts. 

President or the Legislature of the United States.'' This view- 
is stated ex cathedra and without any attempt at argument, and 
three pages later (p. 353) is substantially contradicted. Mr. 
Meig's view will be found in 19 Am. Law Rev. 190-203. 


in the sense of pronouncing void those which they 
think to be contrary to the constitution, and the fur- 
ther fact is that they ninist do so if they are not to 
enforce those acts in particular cases. The matter 
most sharply and immediately before the court in a 
case involving the constitutional question 'is the fact 
that the constitution endows the legislature with the 
power to make laws in harmony with it,^^ which 
means however, not merely the power Df putting 
projects of legislation through the proper parliamen- 
tary stages, but also that of vesting them with the 
force and sanction of law.^'^" Unless, therefore, the 
court is to assume to deprive the legislature of its 
right in this respect, it must either always assume the 
will of the legislature to be accordant with the consti- 
tution or it must be able to plead its own constitu- 
tional right to pronounce on the validity of the acts 
of the legislature under the constitution, — and there 
is no third way about the matter. It is true, of 

"' Hence the rule that an act of the legislature must be an- 
nulled only when clearly unconstitutional, that is, the court 
must not run the risk of violating the Constitution itself, which 
it would do if it deprived the legislature of power. In this con- 
nection, consider the language of C. J. Richardson in Dart- 
mouth College v. Woodward, i N., H. in, 115 (1817) : "If we 
refuse to execute an act warranted by the constitution, our der 
cision in effect alters that instrument and imposes new re- 
straints upon the legislative power which the people never 

""' In this connection note the doctrine that the legislature 
cannot delegate its power, which signifies in relation to referen- 
dum measures (save in connection with local government), that 
it cannot submit to the voters the question whether a legislative 
measure shall be operative or not. See Cooley Const'l Lims., 
(7th Ed.) 168 ffg. 


course, that the court does not order the legislature 
arrested for trying to violate the constitution, but 
neither does it order a man arrested for trying to 
make a contract contrary to the statute of frauds or 
a will contrary to the rule against perpetuities. The 
penalty which the legislature and the man suffer in 
such cases is the same, — they have their acts disal- 
lowed by the court. 

And thus much for a controversy which, first and 
last, has consumed a good deal of paper, ink, and 
dialectical skill, and which, not unlikely, will con- 
tinue its ravages on these commodities. The matrix 
of the quarrel seems to have been a wrong view of 
the proper scope and efficacy of the idea of three co- 
ordinate departments. This idea is well enough in 
its place, which is to fortify each department in the 
proper use of its powers, but it throws no light what- 
ever upon the question as to what those powers are, 
and still less, if possible, does it warrant the claim 
"that any department can properly exercise any 
power committed to another."^^ 

It is accordingly submitted that judicial review rests 
upon the following propositions and can rest upon no 
others : i — That the constitution binds the organs of 
government; 2 — That it is law in the sense of being- 
known to and enforceable by the courts; 3 — That the 
function of interpreting the standing law appertains 
to the courts alone, so that their interpretations of the 
constitution as part and parcel of such standing law 

" C. C. Bonney, 6 Am. Bar Assoc. Reps., 16. See further the 
Note at the end of this article on the Doctrine of Depart- 
mental Construction. 


are, in all cases coming within judicial cognizance, 
alone authoritative, while those of the other depart- 
ments are mere expressions of opinion. That the 
framers of the Constitution of the United States ac- 
cepted the first of these propositions goes without 
saying. Their acceptance of the second one is regis- 
tered in the Constitution itself, though this needs to be 
shown. But it is their acceptance of the third one 
which is the matter of greatest significance, for at 
this point their view marks an entire breach, not only 
with English legal tradition, but, for the vast part, 
with American legal tradition as well, anterior to 


The idea of judicial review is today regarded as an 
outgrowth of that of a written constitution, but his- 
torically both are offshoots from a common stock, 
namely the idea of certain fundamental principles 
underlying and controlling government. In Anglo^^^ 
American constitutional history tihis idea is to be ' 
traced to feudal concepts and finds its most notable 
expression in Magna Carta. ^® The notion was well 
suited to a period when the great institutions of man- 
kind were thought to be sacred, permanent, immutable, 
and did in fact alter but slowly. The period of the 
Reformation, however, was a period of overturn, of 
defiance of ancient establishments, of revolution. Its 
precipitate for political theory was the notion, derived 

" See C. H. Mcllwain, The High Court of Parliament and its 
Supremacy (1911), and G. B. Adams, The Origin of the 
English Constitution (1912). 


from Roman law, of sovereignty, of human authority 
in the last analysis uncontrollable, and capable accord- 
ingly of meeting the exigencies of the new regime 
of Change. 

But where did sovereignty rest? Sir Thomas 
Smith, in his Commonwealth of England, reflecting 
Tudor ideas, attributed it to the Crown in Parlia- 
ment,*" and it is not impossible that English political 
theory would have remained from that day to this sub- 
stantially what it is today but for the attempt of James 
Stuart to set up the notion, on the basis of Divine 
Right, of a kingly prerogative recognized but un- 
controlled by the Common Law. The result was a 
reaction headed by Sir Edward Coke and having for 
its i>urpose, in the quaint words of Sir Benjamin 
Rudyard, "to make that good old, decrepid law of 
Magna Carta, which hath so long been kept in and 
bed-ridden, as it were, to walk again."*^ Coke took 
the position that there was no such thing as sovereign 
power in England, even for Parliament ; for, said he : 
"Magna Carta is such a fellow that he will have no 
sovereign." His famous dictum in Dr. Bonham's 
Case*^ that an act of Parliament "contrary to common 
right and reason" would be "void," was therefore 
quite in harmony with his whole propaganda. At the 
same time, it would be the height of absurdity to sup- 

"F. W. Maitland, Constitutional History, 255. Maitland ex- 
presses the emphatic opinion that the law-making power of 
Crown and Parliament was from an early date unlimited. 

"■ Cobbett, Parliamentary History, II, col. 335 ; the remark 
quoted below is from the same debate, col. 357. 

"8 Reps. 107, 118 (1612). 


pose that these words spell out anything like judicial 
review. They undoubtedly indicate Coke's belief that 
the principles of "common right and reason," being 
part of the Common Law, were cognizable by the 
judges while interpreting acts of Parhament. For the 
rest, however, they must be read along with Coke's 
characterization of Parliament as the "Supreme 
Court" of the realm. Being a court, Parliament was 
necessarily bound by the law, even as it declared and 
elaborated it; but being the highest court, its interpre- 
tations of the law necessarily bound all other courts. 
As he plainly indicated, both by his words, in his In- 
stitutes, and practically, by his connection with the 
framing of the Petition of Right, Coke regarded 
Parliament itself as the final interpreter of the law 
by which both it, the King, and the judges were 

The inaugural event in the history of American 
Constitutional Law, however, was the argument made 
by James Otis at Boston in Februaiy 1761, in the 
Writs of Assistance Case. The question at issue was 
whether the British customs ofificials, one Paxton in 
particular, should be furnished with general search 
warrants enabling them to search for smuggled goods. 
The application was opposed for the Boston mer- 
chants by Thacher and Otis. Thacher contented him- 
self with denying that such a writ as was asked for 
was warranted by any act of Paidiament and, more 
particularly, that the court to whom the application 

'" See note at the end of this article on The True Meaning of 
Coke's Dictum. 


had been made had authority in the premises. Otis, 
on the other hand, plunged at once into the most 
fundamental issues. His argument was, that whether 
such writs were warranted by act of Parliament or 
not, was a matter of indifference, since such act of 
Parliament would be "against the constitution" and 
"against natural equity" and therefore void. "///'' he 
accordingly concluded, "an act of Parliament should 
he made in the very words of this petition, it would 
be void. The executive courts must pass such acts 
into disuse."** 

Was there then any warrant in law for this con- 
clusion? No. The proposition that an act of Par- 
liament contrary to "common right and reason" was 
"void" had indeed been repeated obiter by Coke's con- 
temporary, Hobart, and later by Holt, and had found 
its way into some of the abridgments and commen- 
taries,— works which are apt to be more comprehen- 
sive than critical, — but with it hitherto had never 
been joined the proposition that an inferior court 
might override the will of Parliament if this were 
unmistakably expressed.*^ On the contrary, in Captain 
Streater's Case, in which, in 1653, Otis' argument had 
been anticipated, the idea had been specifically re- 
jected. "Mr. Streater," said the judge in that case, 
"one must be above another and the inferior must 
submit to the superior, and in all justice an inferior 

" See Quincy, Early Mass. Reps., note to Paxton's Case, pp. 
469-85; also, John Adams, Life and Works, II, 521-5. 

" See note to Paxton's Case, Quincy, pp. 521-30 and notes, 
with references to Bacon's Abridgment (1735), Viner's Abridg- 
ment (1741-51), Comyn's Digest (1762-67). Hobart's dictum 


court cannot control what Parliament does. If Par- 
liament should do one thing and we do the contrary 
here, things would run round. We must submit to 
the legislative power."*® 

Nevertheless, having been formulated at the mo- 
ment when Americans were beginning to lay about 
them for weapons with which to resist the pretensions 
of ParHament, Otis' doctrine met with a degree of 
success, — enough at least to make it a permanent 
memory with the men of the time. Otis himself, it is 
true, soon abandoned his own offspring, while his 
reporter John Adams, in arguing a second case in- 
volving the question of the right of Parliament to 
authorize writs of assistance, maintained a significant 
silence on the doctrine. In Virginia, on the other 
hand, the supreme court of the colony, having been 
put the question, early in 1766, whether officers of 

occurs in Savadge v. Day, Hob. 85 (1615) ; Holt's dictum oc- 
curs in City of London v. Wood, 12 Mod. 669 (1701). "Coke 
Lyttleton," wrote Jefferson, with reference to the period when 
he was a law student, "was the universal book of students and 
a sounder Whig never wrote nor one of profounder learning 
in the orthodox doctrines of the British Constitution or what 
is called British rights.'' Writing in 1759, Cadwallader Colden 
makes casual references to a "judicial power of declaring them 
[laws] void": N. Y. Hist'l Soc. Cols. H, 204. In his study on 
Colonial Common Law, Professor Reinsch refers to the case of 
Giddings v. Brown in which a Mass. magistrate (aipparently in 
the 17th century) pronounced a town resolve voting taxes to 
build the minister a house "against fundamental law," and 
void : Select Essays in Anglo-Am. Legal Hist., I, 376. For 
further instances of the influence of the doctrine under dis- 
cussion, see Chalmers, Political Annals, N. Y. Hist'l Soc. Cols., 
I, 81 ; and Chalmers, Colonial Opinions, 373-82. 
"St. Trials, II, 196 fjfg. 


the law would incur a penalty if they did not use 
stamped paper in conformance with the prescriptions 
of the Stamp Act, answered that that act did not bind 
the inhabitants of Virginia, "inasmuch as they con- 
ceived" it "to be unconstitutional" ; while six years 
later, George Mason, whose argument was reported by 
Jefferson, contended in behalf of chents that the same 
doctrine was applicable to the case of local legislation 
that was "contrary to natural right." And thence the 
theory returned to its place of origin. On the very 
eve of the Declaration of Independence, Judge Gush- 
ing, la:ter one of the original bench of the Supreme 
Gourt of the United States charged a Massachusetts 
juiy to ignore certain acts oi Parliament as "void" and 
"inoperative." It was a true case of "judicial review" 
by virtue of the right of revolution.*^ 

Meanwhile, however, a new element had entered 
American political thinking,' — the notion of legislative 
sovereignty, from the pages of Blackstone. The grand 
result of this notion was eventually the establishment 
of the distinction between "natural law," in the broad 
general sense of the moral law, and "civil law" and 
the confinement of civil obligation in the last analy- 
sis to the latter. Blackstone himself is enough of 
a conservative to treat "natural law," "divine law," 
and the like, as in some sense "law," but it is not law, 
he finally admits, potent to control the will of the 

"The opinion of the Va. judges on the Stamp Act (Feb. 
1766) is described by McMaster, Hist., V, 394. Mason's argu- 
ment in Robin v. Hardaway is to be found in Jefferson's (Va.) 
Reps., 109 ffg. Adam's argument in the Advocate-General v. 
Hancock is to be found in Quiincy, loc. cit., 459-62. 


legislature. Considering, therefore, the statement 
"that acts of Parliament contrary to reason are void," 
he says : 

"But if the Parliament will positively enact a thing to 
be done which is unreasonable, I know of no power in 
the ordinary forms of the constitution that is vested 
with authority to control it; and the examples usually 
alleged in support of the rule do none O'f them prove 
that where the main object of the statute is unreasonable 
the judges are at liberty to reject it; for, that were to 
set the judicial power above that of the legislature, 
which would be subversive of all government." 

The only acts of Parliament, accordingly, which the 
judges could ignore were acts "impossible to be 

Strange it is that this exception, which indeed is 
in the nature of a self-identical proposition, should 
have furnished the entering wedge for judicial re- 
view in this country after the establishment of In- 
dependence. Yet such is the fact. The most in- 
fluential case in which judicial review was broached 
before the Convention of 1787 was that of Trevett v. 
Weeden, in which, in 1786, the Rhode Island judges 

" Comms. I, 91. "Sovereignty and legislative power are in- 
deed convertible terms ; one cannot subsist without the other" : 
ib., 46. According to Chancellor Kent, 2,500 copies of the 
commentaries had been sold in America before the outbreak of 
the Revolution. Jefferson testifies that many young lawyers, 
"seduced by the honeyed Mansfieldism of Blackstone, began to 
slide into Toryism." But the Patriots themselves felt the in- 
fluence. Their final position was no longer one of reliance 
on the "British Constitution" and "fundamental law," but to 
oppose the claim of the colonial assemblies as local parlia- 
ments to that of the imperial Parliament : See Jefferson's own 
Summary View. 


refused enforcement to a rag-money law on account of 
its alleged repugnancy, that is, self -contradictory 

Coming, then, to the early State constitutions, we 
find cooperating with the influence of Blackstone, to 
exclude judicial review from them, two other circum- 
stances ; first, uncertainty whether these constitutions 
possessed the force of law and, secondly, the actual 
organization of legislative power in them. That the 
fundamental principles of right and reason invoked 
by Coke were known to the judges and enforceable 
by them, at least as principles of interpretation in ap- 
plying statute law, there could of course be no doubt. 
For even Blackstone conceded that. But the early 
State constitutions were of a different stamp, — they 
were acts of revolution, social compacts, sprung from 
the pages of Locke rather than of Coke. Undoubtedly 
they illustrated and realized the doctrine that all just 
government rests upon the consent of the governed. 
Yet it was a corollary from this doctrine, that a gov- 
ernment established upon this foundation had the right 
to govern, and that this was recoverable by the people 
only by another act of revolution. The power of 
enacting laws, however, was a function of government. 
How, then, could constitutions, bills of rights, frames 
of government, the work of the people themselves, be 
regarded as laws in the strict sense of the term? 
Their moral supremacy none doubted, nor yet that a 
breach of them by government destroyed its right to 
be, but until the people should be regarded as having 
an enacting power, exercisable directly and without 


the intervention of their legislative representatives, 
the supremacy of constitutions was a real barrier to 
their legality^^ 

But the second difficulty was even more formidable. 
A majority of the early State constitutions contained 
statements, sometimes in very round terms, of Montes- 
quieu's doctrine of the separation of powers; and as 
against executive power, a supposed monarchical ten- 
dency in which was feared, this principle was given 
detailed application/'" Not so, however, as against 
legislative power.^^ In the first place, all through 
colonial times, the legislature had stood for the local 
interest as against the imperial interest, which had in 
turn been represented by the governors and the judges. 
In the second place, the legislative department was 
supposed to stand nearest to the peoi>le. Finally, 
legislative power was undefined power. As applied 
against the legislative department, accordingly, all that 
the principle of the separation of powers originally 

*' On a constitution as an act of revolution, see the remarks 
of the judges in Kamper v. Hawkins, Va. Cases 20, fifg. ; also, 
Marshall in Marbury v. Madison; also, Tucker's Blackstone, I, 
App. p. 91. On the lodgment of the function of governing ex- 
clusively with the government, see Luther Martin's remarks in 
his "Genuine Information" (quoted at close of following essay) ; 
also, Dr. Benjamin Rush's remarks in his "Address to the 
People of the United States" (1787) iri Niles' Principles and 
Acts of the Revolution, 234-36. The idea, indeed, is funda- 
mental to the concept of representative government. 

°° See data in Federalist -Nos. 47 and 48. 

°' The position of the legislature in the early State constitu- 
tions is described at length by Morey, in Annals of the Am. 
Acad, of Soc. and Polit. Sc, IX, 398 fifg.; also by Davis, 
"American Constitutions" in Johns Hopkins University Studies, 
3rd Series. 


meant was that those who held seats in the legislature 
should not at the same time hold office in either of the 
other departments.^^ But the legislature itself, like 
the British Parliament and like the colonial legisla- 
tures before it, exercised all kinds of power, and par- 
ticularly did it exercise the power of interpreting the 
standing law and interfering with the course of justice 
as administered in the ordinary courts ;^^ and the only 
test of its acts deemed available was that they should 
be passed in the usual form.°* In short, as both Madi- 

°^ The doctrine of the separation of powers receives recog-, 
nition in the body of the first Virginia constitution in the fol- 
lowing words : "That the legislative, executive, and judiciary 
departments shall he distinct; so that neither exercise the 
powers properly belonging to the other ; nor shall any person 
exercise the powers of more than one of them at the same 
time," etc. See also the first New Jersey Constitution, Art. 
XX ; the original North Carolina Constitution, Arts. XXVIII- 
XXX ; the first Pennsylvania Constitution, Sec. 23 ; the first 
South Carolina Constitution, Art. X : Thorpe, Am. Charters, 
Constitutions, etc. 

'" See note at close of this article on Mingling of Legislative 
and Judicial Powers. 

" Consider, for example, Jefferson's words in his "Virginia 
Notes" (cited above) : It is needless for the executive or the 
judiciary to attempt to oppose the legislature, he says, for then 
"they put their proceedings into the form of acts of assembly, 
which will render them obligatory on the other branches." 
Consider also C. J. Pendleton's words in Com. v. Caton, 4 Call. 
5, 17 (Va., 1782) : "How far this court, in whom the judiciary 
powers may in some sort be said to be concentrated, shall have 
power to declare the nullity of a law passed in its forms by 
the legislative power without exercising the power of that 
branch, contrary to the plain terms of the constitution, is in- 
deed a deep, important, and I will add, a tremendous question 
the decision of which might involve consequences to which 
gentlemen may not have extended their ideas." 


son and Jefferson put tlie matter later, legislative 
power was the vortex into which all other powers 
tended to be drawn. Obviously so long as this re- 
mained the case, there could be nothing like judicial 

The period 1 780-1 787, however, was a period of 
"constitutional reaction," which mounting gradually 
till the outbreak of Shays' Rebellion in Massachusetts 
in the latter part of 1786, then leaped suddenly to its 
climax in the Philadelphia Convention. The reaction 
embraced two phases, that of nationalism against State 
sovereignty, that of private rights against uncontrolled 
legislative power; but the point of attack in both in- 
stances was the State legislature.^" Yet it should not 
be imagined for a moment that those who discerned 
the central fault of "the American political system" 
gave themselves over merely to idle lamentation. For- 
tunately no one contended at that date that the exist- 
ing American constitutions, wrought out as they had 

""See criticisms passed in the Convention on the notion that 
the States were sovereign under the Articles of Confederation, 
in Farrand I, 313-33, 437-79. See also the present writer's 
National Supremacy, ch. Ill (Holt & Co., 1913). For the 
revolt against legislative oppression of private (property) 
rights, see the elaborate criticism of the recent product of the 
State legislatures by Madison in 1786, Writings (Hunt Ed.), H, 
338 ffg. Also, see his statement on the floor of the Convention, 
June 6, and afterwards repeated by him elsewhere, that "the 
necessity of providing more effectually for the security of pri- 
vate rights and the steady dispensation of justice'' was one of 
the objects of the Convention. "Interferences with these," he 
declared, "were evils vvhich had, more perhaps than anything 
else, produced this Convention. Was it to be supposed that re- 
publican liberty could long exist under the abuses of it practised 
in some of the States?" See also Federalist Nos. 10 and 44. 


been under the stress and urgency of a state of war- 
fare, were impossible of improvement.^" Fortunately, 
too, American political inventiveness had by no means 
exhausted itself in its first efforts at constitution- 
building. Upon this latent talent the problems of the 
times acted as incentive and stimulant, eliciting from 
it suggestion after suggestion which it needed but the 
ripe occasion to erect into institutions composing a 
harmonious whole. Some of these suggestions it is 
l>ertinent to enumerate : ( i ) from Massachusetts and 
New Hampshire came the idea of an ordered and 
regular procedure for making constitutions, with the 
result inevita:bly of furthering the idea of an enacting 
power in the people at large and that of the legal 
character of the constitution;'^^ (2) from New Jersey, 
Connecticut, Virginia, Rhode Island and perhaps New 
Hampshire came the idea of judicial review, partly on 
the basis of the doctrine of the right of revolution and 
partly on the basis of the doctrine of certain principles 
fundamental to the Common Law that had found rec- 
ognition in the State constitutions;^^ (3) from North 

"" See Jefferson's apologia in his Virginia Notes, above cited ; 
also Rush's "Address" in Principles and Acts, 234-36. 

"' On the making of the revolutionary State constitutions, see 
Davis in Johns Hopkins University Studies, 3rd Series, pp. 516 
ffg. The legal character of the Massachusetts constitution of 
1780 was recognized and enforced by the supreme court of the 
State in a series of decisions, in 1780-81, pronouncing slavery 
unconstitutional. See G. H. Moore, History of Slavery in 
Massachusetts, pip. 200-23. A futile attempt was made to have 
the legislature order rehearings in some of these cases. The 
petitioners state the grounds of the decisions, ib. 217-8. 

°' See note at close of this article on Alleged Precedents for 
Judicial Review antedating the Convention of 1787. 


Carolina, just as the Philadelphia Convention was as- 
sembling, came the idea of judicial review based 
squarely on the written constitution and the principle 
of the separation of powers;''" (4) from various 
sources came the idea that legislative power, instead 
of being governmental power in general, is a peculiar 
kind of power f° (5) from various sources came the 
idea that judicial power, exercised as it habitually was 
under the guiding influence of Common Law prin- 

'^° Bayard v. Singleton, i Martin 42. See note 24, above. Mr. 
W. S. Carpenter finds from the contemporary newspapers that 
this case was decided in May, several days before the Phila- 
delphia Convention had actually come together. The attorneys 
in the case who argued the unconstitutionality of the legisla- 
tive act were Wm. R. Davie, a N. C. delegate to the Phila. 
Convention, and James Iredell, later a member of the first 
bench of the U. S. Sup. Ct. 

'" See especially Madison's words in Fed. No. 47 and Hamil- 
ton's in No. 81. The latter are quoted infra. See also the 
Reports of the Pennsylvania Censors, referred to in the note on 
the Mingling of Legislative and Judicial Powers at the end of 
this study. The earliest 'Statement of the respective limits of 
legislative and judicial powers came from the royal governors, 
in an effort to check the former. See, for example, the message 
of Gov. Fletcher to the New York Assembly, Apr. 13, 1695 : 
"Laws are to be interpreted by the judges," ». e., the judges 
alone : Messages from the Governors (of New York) (Lin- 
coln, Ed.), I, 55. For later gubernatorial messages on the same 
subject, see ib. II, 250 (Apr. 27, 1786), and IV, 532 ffg. (Apr. 
10, 1850). For some early judicial statements of the notion, 
see Bayard v. Singleton; also Ogden v. Witherspoon and Ogden 
V. Blackledge, discussed below. Some later cases on the point 
are S Cow. (N. Y.) 346; 16 N. Y. 432; 99 N. Y. 463; 159 N. Y. 
362. But the classic judicial statements of the established doc- 
trine are in the cases of Dash v. Van Kleeck, 7 Johns. (N. Y.) 
477, 488-93, 498, 508-9 (1811) ; and Merrill v. Sherburne, 1 N. H. 
199-217 (1817). See also Cooley, Constitutional Limitations 
(2nd Ed.), 173-5- 


ciples, was naturally conservative of private rights;"^ 
(6) from various sources came the idea that the ju- 
diciary must be put in a position to defend its pre- 
rogative against the legislative tendency to absorb all 
powers, and this idea was connected with the idea of 
judicial review both in the relation of means and of 
endf^ (7) from the Congress of the Confederation 

°' The reception accorded Trevett v. Weeden has just been 
referred to. At this same time Wm. Plumer was writing 
(1786) : "The aspect of public affairs in this State is gloomy 

. . . Yet even in these degenerate days, our courts of law are 
firm" ■ Life of Wm. Plumer, p. 166. It was at this time 
that the worship of the judiciary began, which was later to 
become so conspicuous a feature of the Federalist regime, 
leading indeed to the belief on the part of the judges them- 
selves, that they were meant to be the moral guardians of so- 
ciety. See Henry Jones Ford, Rise and Growth of American 
Politics, 112-13. Even Jefferson participated in the general 
feeling to a certain extent. Writing Madison in 1789, he said: 

'The judiciary, if rendered independent and kept strictly to 
their own department, merits great confidence for their learn- 
ing and integrity": Writings (Ford's Ed.) V, 81. Again in 
1793, he wrote : "The courts of justice exercise the sovereignty 
of this country in judiciary matters, are supreme in these, and 
liable neither to control nor opposition from any other branch 
of the government": ib. VI, 421. Yet in 1805 he approved the 
ffg. sentiment, expressed in complaint of Congress' lack of 
power to remove judges : "From this defect in the Constitu- 
tion arise these evil consequences, that many wrongs are daily 
done by the courts, to humble, obscure, or poor suitors. . . . 
It is a prodigious monster in a free government to see a class 
of men set apart, not simply to administer the laws, but who 
exercise a legislative and even an executive power, directly in 
defiance and contempt of the Constitution'' : Phila. Aurora, 
Jan. 28, 1805. 

'^ See the criticism by the Pennsylvania Council of Censors 
(Nov., 1783) against the existing State Constitution: "Because 
if the assembly should pass an tmconstitutional law and the 


came the idea that the Articles of Confederation and 
treaties made under them were rightfully to be re- 
garded as part and parcel of the law of every State, 
paramount, moreover, to conflicting acts of the State 
legislatures and enforceable by the State courts.''^ 
Probably no one public man of the time shared all 
these ideas when the Philadelphia Convention met. 
But the able memibership of that famous body was 
in a position to compare views drawn from every sec- 
tion of the country. Slowly, by process of discussion 
and conversation, these men, most of them trained in 
the legal way of thinking, discovered the intrinsic 
harmony of the ideas just passed in review; discov- 
ered, in other words, that the acceptance of one of 
them more or less constrained the acceptance of the 
others also, that each implied a system embracing all. 

The Virginia Plan, introduced into the Convention 
at its outset, jjrovided for the three departments of 
government. None the less, the same plan gave 
evidence that its authors had but imperfect recogni- 
tion of the implications of the doctrine of the sepa- 
ration of powers, for it associated members of the 
judiciary in a council with the executive to revise 
measures of the national legislature and it left to the 

judges have the virtue to disobey it, the same could instantly 
remove them'' : loc cit., p. 70. See also, Hamilton in Federalist 
Nos. 78 and 80; also infra on the debate of 1802. Madison's 
anxiety for judicial independence of legislative influence was 
extreme: Farrand II, 44-5. 

"^Secret Journals of Congress (1821), IV, 18S-.287; Journals 
of Congress (1801), XII, under dates of Mar. 21 and Apr. 13, 
1787. See also, Bayard v. Smgleton (supra) and Writings of 
Jefferson (Mem. Ed.), VI, 98. 


national legislature the task of keeping State legis- 
lation subordinate to national powers. The first im- 
portant step in the clarification of the Convention's 
ideas with reference to the doctrine of judicial review 
is marked, therefore, by its rejection of the Council 
of Revision idea on the basis of the principle stated 
perhaps most precisely by Strong of Massachusetts, 
"That the power of making ought to be kept distinct 
from that of expounding the laws." "No maxim," 
Strong added, "was better established," and the utter- 
ances of other members bear out his words.®* For, in 
one form or another, the notion of legislative power as 
inherently limited power, distinct from and exclusive 
of the power of interpreting the standing law, was 
reiterated again and again and was never contra- 
dicted. When, therefore, the Convention adopted 
Article III of the Constitution vesting "the judicial 
power of the United States in one Supreme Court 
and such inferior courts as Congress shall from time 
to time establish," it must be regarded as having ex- 
pressed the intention of excluding Congress from the 
business of law-interpreting altogether. 

But a not less important step toward the final result 
was taken when the idea of a congressional veto of 
State laws was dropped and for it was substituted 
the Small State proposition of giving the Constitution 
the character of supreme law within the individual 
States enforceable by the several State judiciaries."^ 

"Farrand II, 73-80. 

"' Note particularly the significance of Sherman's words with 
reference to congressional veto : "Such a power involves a 
wrong principle, to wit, that a law of a State contrary to the 


Thus it was settled that as against State legislation at 
any rate the Constitution should be legally supreme. 
Why not then as against national legislation as well ? 
When it was decided that the Constitution should be 
referred for ratification to conventions within the 
States, the question was probably determined for the 
majority of the members. Said Madison : "A law 
violating a constitution established by the people them- 
selves would be considered by the judges as null and 
void."*^® Later the Convention proceeded to insert in 
the Constitution prohibitions upon congressional 
power in the same terms as some of those already im- 
posed upon State legislative power. ^'^ The conclusion 
is unescapable that when Article VI, par. 2, designates 
the Constitution as law of the land in the same terms 
as it does acts of Congress made in pursuance of it, 
it does so by virtue of no inadvertence or inattention 
on the part of its framers. Moreover, as noted before, 
the same paragraph recognizes State constitutions as 
known to and enforceable by State courts. 

But then was it upon the premises thus provided 
that the Convention did actually base its belief in ju- 
dicial review of acts of Congress ? The answer to this 
question is indicated in part by the fact that the func- 

Articles of Union would, if not negatived, be valid and oper- 
ative." Yet as late as Aug. 23, John Langdon of New Hamp- 
shire said: "He considered it [the question of a Congressional 
veto] resolvable into the question whether the extent of the 
National Constitution was to be judged of by the State gov- 
ernments": Farrand H, 391. The "arising" clause was adopted 
Aug. 27. 

"Farrand, H, 93. 

"' Cf. sections 9 and 10 of Art. I. 


tion of judicial review is almost invariably related by 
the members of the Convention to the power of the 
judges as "expositors of the law." But a better 
rounded and a more satisfactory answer is furnished 
by Hamilton's argument in Federalist 78 : "The in- 
terpretation of the laws is the proper and peculiar 
promnce of the courts. A constitution is in fact, and 
must he regarded by the judges, as a fundamental law. 
It therefore belongs to them to ascertain its meaning 
as 7C'r// as the meaning of any particidar act proceed- 
ing from the legislative body, and, in case of irrecon- 
cilable difference between the tzvo, to prefer the will 
of the people declared in the cotistitution to thai of 
the legislature as e.rpressed in statute." It cannot be 
reasonably doubted that Hamilton was here, as at 
other points, endeavoring to reproduce the matured 
conclusions of the Convention itself.®^ And not less 
certain is it that he was thus notifying those to whom 
the Constitution had been referred for ratification of 
the grounds upon which its framers and supporters 
based the case for judicial review. 

" Note also the words of James Wilson in his "Lectures" 
(1792), where lie presents judicial review as "the necessary 
result of the distribution of power made by the Constitution 
between the legislative and the judicial departments" : Works 
(Andrews' Ed.), I, 416-7. Note, too, the words with which 
Hamilton introduces his discussion of the grounds of judicial 
review : "As this doctrine is of great importance in all the 
Am. constitutions, a brief discussion of the grounds on which 
it rests cannot be unacceptable." There is, in other words, no 
peculiar foundation for the power in the U. S. Constitution. 



Our demonstration, however, of the views of the 
framers with reference to the basis of judicial review 
may also be profitably extended to the period between 
the adoption of the Constitution and the decision in 
Marbury v. Madison. For this was the period when 
the new system was set going, not only in the still un- 
dimmed light of the views of its authors, but for the 
most part under their personal supervision. But the 
interest of the period also arises in part from the real 
paradox which judicial review has always presented in 
our system from the outset, the paradox namely of try- 
ing to keep a government based on public opinion 
within the metes and bounds of a formally unchange- 
able law. The dilemma thus created did not at first 
press, but with the rise of political opposition it became 
grave enough, and when this opposition finally tri- 
umphed, not only judicial review but even judicial 
independence was for the moment in peril. 

But, indeed, the difficulty at the time of the adop- 
tion of the Constitution was hardly a new one, for 
some such objection had been earlier forthcoming to 
judicial review within the States themselves, where 
however, the judges were generally much less secure of 
independence than under the United States Constitu- 
tion,^^" and where, as we have seen, the legislature still 
fredy directed the course -of judicial proceedings. 
Furthermore, as I have already indicated, judicial re- 
view as at first proposed for the States had rested 
upon a logic which put it in the light of a highly extra- 

""' See the data given in Annals of Congress, I, col. 844. 


ordinary, quasi-revolutionary remedy, and gave it sway 
w^ithin the very limited area marking the intersection, 
so to speak, of the written constitution with funda- 
mental principles oi the Common Law. 

It is hardly surprising, then, to find Hamilton 
turning from his work of planting judicial review 
squarely within the Constitution and of rendering its 
field of operation co-extensive with the four corners 
of that instrument, to consider certain objections, 
which he recites as follows : 

"The authority of the proposed Supreme Court of 
the United States, which is to be a separate and inde- 
pendent body, will be superior to that of the legislature. 
The power of construing the laws according to the spirit 
of the Constitution will enable that court to mould them 
into whatever shape it may think proper; especially as 
its decisions will not be in any manner subject to the 
revision or correction of the legislative body. This is as 
unprecedented as it is dangerous. . . . The Parliament 
of Great Britain and the legislatures of the several 
States can at any time rectify by law the exceptionable 
decisions of their respective courts. But the errors and 
usurpations of the Supreme Court of the United States 
will be uncontrollable and remediless." 

Hamilton met these objections by flatly denying that 
the principle of the separation of powers permitted 
even a State legislature to reverse a judicial decree. 
Said he: "Neither the theory of the British nor the 
State constitutions authorizes the revisal of a judicial 
sentence by a legislative act.""^ 

Madison, on the other hand, responded — character- 
istically — to the views of the alarmists more pro- 

™ Federalist No. 8i. Hamilton also pointed to impeachment 
as an available remedy for an abuse of power by the judges. 


nouncedly. ^ On the floor of the Convention, as we 
have just seen, he had espoused the doctrine of judicial 
review in unmistakable terms!] Again in the Feder- 
alist he had described the Supreme Court as the 
tribunal which was "ultimately to decide" the ques- 
tions that would necessarily arise between the State 
and national jurisdictions. ''*' And in the Virginia con- 
vention his point of view had still been the same: 
the National Government was to be the final judge of 
its own powers through the Supreme Court. ''^ Yet 
within six months he was writing a correspondent in 
Kentucky that neither the federal nor State consti- 
tutions made any provision "for the case of a dis- 
agreement in expounding them" and that the attempt 
of the courts to stamp a law "with its final character" 
"by refusing or not refusing to execute it" made "the 
judicial department paramount in fact to the legis- 
lative, which was never intended and can never be 

Still Madison was reluctant to abandon judicial re- 
view outright. What he really desired was a principle 
which, while saving to judicial interpretations of the 
Constitution their finality in certain instances, in 

™ No. 39. 

"Elliot, III, 484-S. 

'^Note 35, supra. Madison, like many other Virginians of 
prominence, was angered at this time by the pedantic attitude 
taken by the State court of appeals toward an act of the legis- 
lature imposing new duties on them without increasing their 
salaries. See the Case of the Judges, 4 Call. 139, ffg. (1788). 
The case gave rise to a vigorous debate in the Virginia assembly. 
See Monroe to Madison, Nov. 22, 1788: "Letters to Madison," 
MSS., Library of Congress. 


others clad those of Congress with a like finality. He 
soon had an opportunity to attempt the formulation 
of such a principle. The bill introduced into the first 
Congress creating the Department of Foreign Affairs 
contained the clause, with reference to the Secretary 
of State, "to be removable from office by the Presi- 
dent of the United States." The clause was at once 
attacked by Smith of South Carolina in the following 
words : "What authority has this house to explain the 
law ? . . . Sir, it is the duty of the legislature to make 
laws; your judges are to expound them." Madison 
sprang to the defense of the clause. He admitted that 
it represented an attempt by Congress to construe the 
Constitution fin-ally at the point involved, but he as- 
serted that it was within Congress' power to do this 
very thing in a case where the Constitution was silent 
and the question raised concerned an apportionment 
of power among departments. In other words, an as- 
sumed incompleteness at points was to give Congress its 
opportunity. But, rejoined Gerry of Massachusetts, 

"I would ask, gentlemen, if the Constitution has given 
us the the power to make declaratory acts, where is the 
necessity of inserting the Fifth Article for the purpose 
of obtaining amendments ? The word amendment implies 
a defect, a declaratory act conceives one. Where then is 
the difference between an amendment and a declaratory 

The protest against an "attempt to construe the Con- 
stitution" was also voiced by Sherman of Connecticut, 
Page and White of Virginia, and Benson of New 
York, with the result that eventually Madison himself 
joined in support of a motion striking out the excep- 


tionable clause and substituting for it phraseology 
merely inferring that the President would exercise the 
power of removal and making provision for the 
event.''* A little later the House passed the Judiciary 
Act almost without comment upon the 25tli section of 
it, which recognizes the judicial prerogative in rela- 
tion to the written constitution in the most explicit 

" For this debate, see Annals of Congress, I, col. 473 ffg. 

'* The following are the names of those who attended the 
Philadelphia Convention and later supported the Act of 1789: 
Ellsworth, Paterson, Strong, Bassett , and Few — all of whom 
were on the Senate Committee that drafted the act; Robert 

Mprris- and Read , also Senators; and Madison , Baldwin , and 
SliSHcan in We House. Professor Beard in his Supreme 
Court, etc., assumes that all these men must have favored 
judicial review in 1787. The argument must be taken with 
considerable allowance, for judicial review was a rapidly spread- 
ing idea during this period. On the floor of the Convention 
itself there were several converts. Read, for example, in this 
connection the exact statements of Gerry, Wilson, and Dickin- 
son, as reported by Madison. Compare Dickinson in his "Let- 
ters of Fabius." Compare Morris' words in 1785: Sparks, Life 
of Gouverneur Morris, III, 438. Mr. Horace Davis in the 
November, 1913, Am. Polit. Sc. Rev. seeks to prove, on the other 
hand, that those who supported the Act of 1789 thereby showed 
that they did not believe in the power of the Supreme Court to 
pass upon the validity of acts of Congress, except as the question 
was raised in cases coming up from the State courts. If Mr. 
Davis had turned to the debate, just reviewed, on the establish- 
ment of the Department of Foreign Affairs, he would have 
found at least half a dozen men championing the notion of 
judicial review who later voted for the Act of 1789. Also, I 
should like to ask where the State courts get their power to 
pass on the validity of acts of Congress save as it is intrinsic 
to judicial power under a constitution regarded as law. The 
argument would, however, have considerable force if the Su- 
preme Court got its power from the clause "cases arising under 


From this time on for nearly a decade, the juristic 
view of the Constitution passed substantially without 
challenge. It is true that when in the first Hayburn 
case the judges of the Middle Circuit refused to en- 
force the Pension Act of 1792 on the ground of its 
unconstitutionahty, some "high-fliers in and out of 
Congress" raised the cry of impeachment; but they 
were speedily silenced. Upon the objections of the 
judges to the act being filed with the President, the 
latter forwarded them to Congress, which proceeded 
promptly to bring the act into conformity with the 
judicial view of constitutional requirements.''® Four 

this Constitution," considered in the light of Hamilton's in- 
terpretation of it in Fed. 80. For some further references in 
the first Congress to judicial review, see Annals, I, cols. 457, 
l(>li, 767-8; II, cols. 1978 and 1988. 

'° The materials for this account of the "Pension Case" are 
drawn from 2 Dall. 409 ; Am. St. Papers, Misc. I, 49-52 ; Annals 
of Cong., HI, cols, 556-7; Annals of Cong., XI (7th Cong., ist 
sess'n), cols. 921-5; XJ. S. v. Ferreira, 13 How. 40 (note). The 
statement with reference to the threat of impeachment is based 
on the following extract from Bache's General Advertiser 
(Camden, N. J. for Apr. 20, 1792) : "Never was the word 
'impeachment' so hackneyed as it has been since the spirited 
sentence passed by our judges on an unconstitutional law. 
The high-fliers, in and out of Congress, and the very humblest 
of their humble retainers, talk of nothing but impeachment! 
impeachment ! impeachment ! as if forsooth Congress were 
wrapped up in the cloak of infallibility, which has been torn 
from the shoulders of the Pope; and that it was damnable 
heresy and sacrilege to doubt the constitutional orthodoxy of 
any decision of theirs, once written on calf skin 1 But if a 
Secretary of War can suspend or reverse the decision of 
the Circuit Judges,, why may not a drill sergeant or a black 
drummer reverse the decisions of a jury? Why not abolish 
at once all our Courts, except the court martial? and burn all 
our laws, except the articles of war . . ?" "But when those 


years later occurred the case of United States v. 
Hylton,''^ which is instructive of the estabHshed doc- 
trine in a number of ways. The only question 
argued before the court was that of the constitution- 
ality of the act of Congress involved. In the argu- 
ment for the United States, the Attorney General was 
assisted by Alexander Hamilton, for whose services 
Congress appropriated a special fund. Neither side 
challenged the power of the court in the premises.'^'' 
The court's decision upholding the act was based 
purely upon the merits of the case. Madison was 
plainly disappointed at the act's not being disallowed. '^^ 
And meantime, judicial review was also advancing 
within the States, and what is an even more significant 
development, was being transferred from the earlier 
basis of fundamental principles to the written consti- 

impeachment mongers are asked how any law is to be declared 
unconstitutional, they tell us that nothing less than a general 
convention is adequate to pass sentence on it; as if a general 
convention could be assembled with as much ease as a party 
of stock jobbers.'' And to like effect is a paragraph in Fre- 
neau's National Gazette for Apr. 16, 1792. I am indebted for 
these references to my friend, Mr. W. S. Carpenter, who is 
preparing a volume on Judicial Tenure in the United States. 

"3 Dall. 171 (1796)- 

"Annals, XI, cols. 925-6. 

"It was also during this period that, in 1793, the Supreme 
Court refused Washington's request to advise him with refer- 
ence to the operation of the treaties of 1778 with France, basing 
its refusal upon the strictly judicial character of their office : 
Baldwin, American Judiciary, 33. In the debate on the De- 
partment of Foreign Affairs in 1789, Gerry had expressed the 
idea that the President could require opinions of the judges on 
constitutional questions and that these would be binding on 
Congress: loc. cit. col. 524. 


tiition. Two illustrative cases are Bowman v. Mid- 
dleton,''° and Kamper v. Hawkins.'^'* In the former, 
decided in 1792, the South Carolina supreme court 
pronounced an early colonial statute to have been void 
ab initio as contrary to "common right" and "Magna 
Carta." In the latter, four years later, the Virginia 
court of appeals pronounced an act of the State legis- 
lature void as in conflict with the letter and spirit of 
the Virginia constitution, which was described as an 
ordinance of the people themselves and therefore su- 
perior to an ordinary statute, but as nonetheless a 
source of rules determinative of the rights of 

One thing that retarded the growth of judicial re- 
view in the States was the continuing influence of 
Blackstone, with his notion of parliamentary sover- 
eignty,^^ but a not less potent factor was the 

'" I Bay (S. C.) 252. Earlier than this, in the case of Ham v. 
McClaws, loc. cit., 93 (1789), the S. C. court, following Coke's 
dictum, gave a statute a very restricted meaning to bring it 
into conformity with "rules of common right and justice." 
"Statutes made against natural equity," said the court, "are 
void, and so also are statutes made against Magna Carta." 

™Va. Cases, 20. 

'' Note J. Nelson's words, p. 131 of the volume : For the legis- 
lature to decide whether its own act is void or not would be 
unconstitutional, "since to decide whether the plaintifif or de- 
fendant under the existing law have a right is a judicial act." 

'" For an illustration of the Blackstonian influence, see 
Zephaniah Swift, The System of Laws of Connecticut (179s). 
pp. 16-7, 34-S, 52-3. Also, in the same connection, see argu- 
ments of attorneys in 4 Halstead (N. J.) 427 and i Binney 
(Pa.) 416. For a decidedly disingenuous and somewhat amus- 
ing attempt to explain Blackstone's words away, see Works of 
James Wilson (Andrews' Ed.), II, 415. Note also, Marshall's 


retention of the doctrine that legislative power ex- 
tended to the interpretation of the standing law. Thus 
as late as 1798 we find Justice Chase of the United 
States Supreme Court declaring that only in the 
Massachusetts constitution were the powers of gov- 
ernment distributed; and two years later the same 
judge announced his opinion that the mere statement 
of the general principle of the separation of powers in 
a State constitution did not serve to restrict the legis- 
lative powers, that such general principles were "not 
to be regarded as rules to fetter and control, but as 
matter merely declaratory and directory."^^ But in 
Ogden V. Witherspoon,^*' which was a North Carolina 
case falling within federal jurisdiction because of the 
diverse citizenship of the parties to it, and in which 
therefore the federal court stood in the same relation 
to the State constitution that the State court would 
have, Chief Justice Marshall on circuit reversed this 
position; and in Ogden v. Blackledge the Supreme 
Court itself sustained his course. In the latter case 
the question at issue was whether a North Carolina 

words, as attorney in Ware v. Hylton, 3 Dall. 199, 211 : "The 
judicial authority have no right to question the validity of a 
law unless such a jurisdiction is given expressly by the 

^'The cases referred to are Calder v. Bull, 3 Dall. 386, and 
Cooper V. Telfair, 4 Dall. 13. Justice Chase indicates by his 
remarks in these cases, significantly, reluctance to admit judicial 
review save on the hasis of natural rights and the social com- 
pact. His remarks in the latter case, however, contain inter- 
esting testimony as to the unanimity of opinion on the subject 
among bench and bar, both in 1800 and at the time of the adop- 
tion of the Constitution. 

^3 N. C. 404 (1802). 


statute of limitations, passed in 171 5, had been re- 
pealed in 1789, the State legislature having declared 
in 1799 that it had not been. Said attorney for 
plaintiff : "To declare what the law is or has been 
is a judicial power, to declare what it shall be is 
legislative. One of the fundamental principles of all 
our governments is that the legislative power shall be 
separated from the judicial."^" The court stopped 
counsel and decided that, "under all the circumstances 
stated, the act in question had been repealed in 1789." 

The service thus rendered the cause of judicial review 
under the State constitutions by the federal courts 
acting in their vicarious capacity cannot be overesti- 
mated. By 1820, the spread of the juristic interpre- 
tation of the principle of the separation of powers 
had effected the establishment of judicial review on 
the basis of the written constitution in every State in 
the Union save only Rhode Island, which exception 
moreover only proves the rule, since it is explained by 
the fact that till 1842 Rhode Island continued its 
colonial charter as a constitution and that by this in- 
strument legislative power remained undefined. None- 
theless, even today. State judges in exercising this 
power sometimes place their right to it upon a some- 
what precarious basis.®" 


But lastly we turn to consider the challenge made 
to the finality of the Supreme Court's interpretation 

^2 Cr. 272, 276 (1805). 

™ See the note at the dose of this study on the Establishment 
of Judicial Review in the States. 


of the Constitution in relation to acts of Congress l>y 
Jefferson and his more radical followers in the years 
1798-1802. The matter most immediately demanding 
explanation is evident. It is the entire failure of 
this challenge even while its authors were borne into 
higher office by an overwhelming political triumph. 

The debate and vote on the Judiciary Act of 1789 
prove that originally the advocates of State rights — 
for they existed from the beginning — were nothing 
loath to accept the Supreme Court's view of the Con- 
stitution as final, both in relation to national and to 
State power. When, however, the federal judges 
showed themselves disposed to uphold and enforce 
the Alien and Sedition Laws of 1798, and some of 
them indeed to entertain prosecutiions for sedition 
under a supposed Common Law of the United States,*®" 
the State-rights champions began to appreciate for 
the first time the added sanction given to national 
authority by judicial decision. The Virginia and 
Kentucky Resolutions of 1798 and 1799 were framed 
primarily with the design of breaking through this 
subtle control, on the warrant of the propositions, 
first that the Constitution was a compact of sovereign 
States and, second, that the organ of sovereignty within 
a State was its legislature, from which propositions 
the conclusion was drawn that the final word in con- 
struing the national Constitution lay with the indi- 

"'" On the question of whether the federal courts enjoy a 
Common Law jurisdiction independently of statute, see U. S. v. 
Worrall, 2 Dall. 384 ; U. S. v. Hudson et al., 7 Cr. 32 ; U. S. 
V. Coolidge, i jSall. 488. 



vidual State legislatures.^'' But the outcome of 
the propaganda thus undertaken was not merely a 
further vindication of the prerogative of the Supreme 
Court of the United States, but of all courts. Thus 
having been forwarded to the other legislatures, the 
resolutions elicited from the seven Northern of them 
unequivocal declarations of the right of the "Supreme 
Court of the United States ultimately" to decide "on 
the constitutionality of any act" of Congress.^^ In his 
famous Report of 1799 to the Virginia legislature, 
Madison endeavored at first to meet these responses 
by reiterating the doctrine of the original resolutions, 
but even in so doing he admitted the finality of judi- 
cial constructions of the Constitution as against the 
other branches of the National Government, and in 
the end he abandoned his case completely.®^ The 
Resolutions, he contended, taking a defensive tone, 
were entirely proper, since they were designed merely 
"to excite reflection," whereas, he added, decisions of 
the judiciary, "are carried into immediate effect by 
force." It would be hard to imagine a more complete 
retreat. The probability is that he and those for 
whom he spoke had begun to realize that to make the 
State legislature the final interpreter of the National 

"MacDonald, Select Documents, 148-60; Elliot, IV., 528-32, 
540-45. It should be noted that Jefferson did not deny judicial 
review outright in 1798. Writing Rowan, Sept. 26, 1798, he 
said : "The laws of the land, administered by upright judges 
would protect you from any exercise of power unauthorized 
by ihe Constitution of the U. S." : Writings (Ford, Ed.), 
VII, 281. 

"* H. V. Ames, State Documents on Federal Relations, 16-26. 

'"Writings (Hunt's Ed.), VI, 341-406. 


Constitution was also to make it the final interpreter 
of the State constitution, which in turn meant either 
the setting up of a legally uncontrolled power within 
the State itself or — what practically would have been 
the same thing — return to the idea, now rapidly be- 
coming obsolete, of a legislative function of jvus dicere. 

Two years later, nevertheless, the question of the 
finality of the judicial view of the Constitution was 
again to the front, though on a somewhat altered foot- 
ing. By the election of 1800 the Republicans had 
captured the Presidency and both Houses of Congress, 
but the judiciary still withstood them. Now, at the 
very moment of retiring from power the Federalists 
proceeded by the Act of February, 1801, substantially 
to double the number of inferior federal courts, while 
President Adams at once set to work, with the co- 
operation of the Senate, to fill the newly created offices 
with Federalists. The federal judiciary, exclaimed 
Randolph wrathfully, has become "a hospital of de- 
cayed politicians!" Jefferson's concern went deeper. 
Writing Dickinson he said: "They have retired into 
the judiciary, from which stronghold they will batter 
down all the works of Republicanism." 

Naturally the first step attempted was the repeal 
of the Act of 1801, but from the point of view of a 
possible larger program of definitely subordinating 
the judiciary to the pohtical branches of the govern- 
ment, the repeal voted was indeed a Pyrrhic victory.®" 

"Jefferson and Giles were originally of the opinion that the 
act was irrepealable. They were converted to their later view 
by the dialectic of Joha Taylor of Caroline. These statements 
are based on documents from the Breckenridge MSS. which 


In the debate on the question the Federalists speedily 
developed the argument that, inasmuch as the Consti- 
tution designed the judiciary to act as a check upon 
Congress, the latter was under constitutional obliga- 
tion not to weaken the independence of the former 
in any way. To meet this argument Breckenridge of 
Kentucky, the Republican leader in the Senate — and 
one of the authors O'f the Kentucky Resolutions — 
brought forward the theory of the equal right of the 
three departments, when acting within their respective 
fields, to construe the Constitution for themselves, and 
from it deduce the exclusive right of the legislature 
"to interpret the Constitution in what regards the law- 
making power" and the obligation of the judges "to 
execute what laws they make." In other words, as we 
noted earlier, the notion of a departmental right of con- 
stitutional construction takes its rise not from the effort 
to establish judicial review but from an attempt to over- 
throw it. But the feeble disguise which this doctrine 
afifords legislative sovereignty made it little attractive 
even to Republicans, who for the most part either plainly 
indicated their adherence to the juristic view of the 
Constitution, or following a hint by Giles of Virginia, 
kept silent on the subject. The Federalists on the 
other hand were unanimous on the main question, 
though of divergent opinions as to the grounds on 
which judicial review was to be legally based, some 
grounding it on the "arising" and "pursuant" clauses, 
some on the precedents of the Pension and Carriage 

are given in Mr. W. S. Carpenter's thesis on Judicial Tenure in 
the United States. 


cases, some on the nature of the Constitution and of 
the judicial office, some on "the contemporary use of 
terms" and "the undisputed practice under the Con- 
stitution" "of all constitutional authorities." And un- 
doubtedly, by this date, all these grounds were fairly 
available save the first. For the rest, said the Feder- 
alist orators, judicial review was expedient, since the 
judiciary had control of neither the purse nor the 
sword; it was the substitute offered by political wis- 
dom for the destructive right of revolution ; "to have 
established this principle of constitutional security," 
"a novelty in the history of nations," was "the peculiar 
glory of the American people;" the contrary doctrine 
was "monstrous and unheard of."''^ 

"'Annals of Cong., XI, cols. 26-184 (iSenate), cols. 510-985 
(House). Breckenridge of Kentucky did not at first attack 
judicial review, loc. cit. 92-9; but was> finally prodded to it, ib. 
178-80. In the Senate two advocates of repeal attacked judicial 
review (Breckenridge and Stone of North Carolina), while two 
(Jackson of Georgia and Wright of Maryland) accepted it. 
In the House, three advocates of repeal attacked judicial re- 
view (Randolph of Virginia, Williams of North Carolina, and 
Thompson of Virginia) ; two endeavored to discover a compro- 
mise position, along the line of the doctrine of departmental 
equality (Davis of Kentucky and Bacon of Massachusetts) ; 
but five, impliedly at least, accepted judicial review without 
making such qualifications (Smith of Vermont, Nicholson of 
Maryland, Gregg of Pennsylvania, Holland of North Carolina, 
and Varnum of Massachusetts). Their remarks can be easily 
located through the Index. Those of Randolph and Bacon are 
most instructive. In the Senate, seven opponents of repeal 
championed judicial review (see, especially, the speeches of 
Morris of New York, and Chipman of Vermont). In the 
House, fifteen of the same party performed this service. The 
remarks quoted in the text are from the speeches of Stanly and 
Henderson of North Carolina, Rutledge of South Carolina, and 


A few months later occurred the decision in Mar- 
bury V. Madison, which against this background as- 
sumes its true color. Yet Marshall's performance is 
by no means to be regarded as a work of supereroga- 
tion. In the first place, vested as it was with the ap- 
parent authority of a judicial decision, it brought 
to an end a discussion which, for all that it had been 
highly favorable to judicial review, might in the end 
have proved unsettling. Again, it threw the emphasis 
once more upon the great essential considerations of 
the character of the Constitution, as "fundamental and 
paramount law" and "the province and duty of the 
judicial department to say what the law is." Finally, 
in the very process of vindicating judicial review, it 
admitted to a degree the principle that had thus far 
been contended for only by opponents of judicial re- 
view. Thus, discussing the amenability of the Presi- 
dent and his agents to mandamus, the Chief Justice 
says: "By the Constitution of the United States the 
President is vested with certain important political 
powers in the exercise of which he is to use his own 
discretion and is accountable only to his country in 

Dana of Connecticut: Cols. 529-30, 542-3, 547-6, 754-5, 920, 932. 
Other notable speeches were those of Goddard and Griswold of 
Connecticut, and Hemphill of Pennsylvania. Giles' case is in- 
teresting. In the debate on the first Bank, 1791, he had answered 
an argument in behalf of the proposition, that was drawn from 
the fact that the Congress of the Confederacy had chartered 
"the Bank of North America" thus : "The act itself was never 
confiTtned by a judicial decision.'' In other words, adjudication 
is made the final test of constitutionality. But in 1804, we find 
him holding that Congress might impeach a judge for declaring 
one of its acts unconstitutional : J. Q. Adams, Memoirs, I, 
321 flfg. 


his political character and to his own conscience."''^ 
Later of course, this doctrine, which we may call the 
doctrine of departmental discretion, was supplemented 
by the doctrine that the powers of Congress must be 
liberally construed,^* and later still by the doctrine of 
the immunity of the President from judicial process.®* 
All these doctrines may be readily harmonized with 
the theory of judicial review.®^ At the same time, 
they are not constrained by that theory, but are plainly 
concessions to the necessity of making the Constitu- 
tion flexible and adaptable while still keeping it legal. 
They prove therefore that "the spirit of accommoda- 
tion" with which Professor McLaughlin credits the 
political departments has at least been met by a similar 
spirit on the part of the judiciary. 

* =K * * 

Judicial Review originally offered itself on the 
basis of the notion of Fundamental Law, but could 
not establish itself on that basis because legislative 
power was still undefined, approximating indeed to 
all governmental power viewed in the light of its 
exercise by a particular organ of government. Later 
the emergence of the distinction between law as an 
act of revelation, like the Common Law, and law 
as an act of authority, like statute law, suggested the 

"i Cr. 165-6. 

"McCulloch V. Md., 4 Wheat. 316 (i8ip). 

"'Miss. V. Johnson, 4 Wall. 475 (1867). 

°° The theory, however, of the immunity of the President from 
jurisdiction for his personal and private acts, so long as he 
remains in office, has no reasonable foundation. See in this 
connection Countryman, The Supreme Court and its Appellate 
Jurisdiction, pp. 230 fifg. (Albany, 1913). 


requisite differentiation of "legislative" and "judicial" 
powers; but this distinction was accompanied by the 
notion of legislative sovereignty, and so judicial re- 
view was once again postponed.*® But in democratic 
America the attribute of sovereignty was presently 
a;bsorbed by the People, — first, in its passive sense of 
the source of governing power, and later in its active 
sense of the highest governing power; and the result 
of the latter development was to impart to the con- 
stitution the character, not simply of an act of revo- 
lution, but of law, in the true sense of the term of a 
source of rules enforceable by the courts. 

Until the Convention of 1787, judicial review as 
a workable institution was still in ovo. One of the 
main motives however that had brought the Conven- 
tion together was a general disgust at the recent antics 
of the State legislatures. To curtail legislative power 
as it existed in the State constitutions in the inter- 
est, first, of an adequate national power and, secondly, 
in the interest of private rights, was therefore one 
of the main problems before that body. From some 
of the States, the tentative hint of judicial review was 
available, and when the notion of a congressional 
veto on State laws was rejected, was gladly turned 
to. But this outcome had in fact been substantially 

" Note in this general connection that James Otis maintained 
in his Rights of the British Colonists Asserted and Proved 
(1764) that, "The supreme power in a state is jus dicere only; 
jus dare, strictly speaking, belongs only to God" : McLaughlin, 
The Courts, etc., p. 70. With Otis' contention, on the other 
hand, compare Bacon's significant warning in his Essay on 
Judicature, that the judges ought to be "lions, but lions under 
the throne" and not to "interfere with points of sovereignty." 


guaranteed from the first by the Convention's grow- 
ing comprehension of the principle of the separation 
of powers in relation to a written constitution re- 
garded as lazv; and by the same token, judicial re- 
view of acts of Congress was also assured from an 
early date a place in the projected system. 

From time to time, various other arguments than 
the one just reiterated have been urged in support of 
judicial review, even by judges, particularly of the 
State courts; but they are all invalid as assuming the 
very point in dispute. The judges do not exercise a 
revolutionary function in pronouncing acts of the 
legislature void, but an official function. Their con- 
stitutional ecjuality with the other departments se- 
cures them in the possession of their rightful powers 
but does not enlarge those powers. Their oath of 
fidelity to the constitution does not oblige them to ex- 
ercise other than their constitutional powers in its 
defense. Furthermore, the notion of an equal au- 
thority in all departments and officers to determine the 
meaning of the constitution for themselves was origi- 
nally brought forward with a view to checking judicial 

And thus much by way of summary. In the last 
analysis, the doctrine of judicial review involves "an 
act of Faith," to wit, the belief that the judges really 
know the standing law and that they alone know it.®'^ 

"' Says Montesquieu : "Judges are no more than the mouth 
that pronounces the words of the law." Mr. Pope in his article 
in the Harv. Law Rev., cited above, insists upon the belief in 
1787 that the judges knew the law, while all others had only 
opinions about it. 


This act of faith was easy for the popular mind under 
the regime of the Common Law. To-day, however, 
through the activity of legislatures in the- prosecution 
of Reform, law comes to be looked upon more and 
more as something made rather than as something 
discovered,' — as an act of authority rather than as an 
act of knowledge. The result is that the possibility of 
an automatic declaration of the law by the judges 
comes to be regarded with scepticism; and it comes 
to be said that the judges in interpreting the law 
really change it and in interpreting the constitution 
really change that. 

To these views a large measure of truth must be 
conceded. Meantime, fortunately, the philosophy of 
Evolution has introduced a distinction of palpable 
serviceability to our constitutional theory in its pres- 
ent exigency, the distinction between growth by. grad- 
ual accretion and change by leaps and bounds. The 
concept of an automatic declaration of the law is there- 
fore no longer necessary to the doctrine of the separa- 
tion of powers. The judges change the law, it is true, 
but they go about the business in a vastly different 
way than the legislature does. The legislature acts 
simply upon considerations of expediency. The 
judges are controlled by precedent, logic, the sensible 
meaning of words, and their perception of moral con- 

Also, as it happens, our courts are to-day in a 
position in construing the constitution to avail them- 

°° See generally Prof. Vinogradoff's illuminating little volume 
on Common Sense in Law (Home Univ. Library Series, Holt & 
Co. N. Y., 1914). 


selves of the modern flexible view of law as some- 
thing inherently developing, in a way never before 
possible to them. All constitutional limitations set- 
ting the bounds between the rights of the community 
and the rights of the individual have tended of recent 
years to be absorbed into the constitutional require- 
ment of "due process of law" and this requirement, 
in turn, has come to take on the general meaning of 
"reasonable law."®^ So far as constitutional theory 
itself is concerned there is small ground for the com- 
plaints levelled by reformers at judicial i-eview. When, 
however, one turns to the more concrete matter of the 
fitness of particular judges for the great responsi- 
bility vested in them by the constitution, there is, of 
course, often room for discussion. 


I — Judicial Review in the State Ratifying Conven- 
tions : The power that the courts would have with 
reference to unconstitutional acts of 0>ngress was ex- 
pounded at length in the Pa. convention by Wilson: 
Elliot, Debates, II, 417, 454 (Edition of 1836) ; also by 
Ellsworth in the Conn, convention, ib. 198-9. It was 
referred to directly by Hamilton in the N. Y. convention, 
ib. 336-7. Several references occur to it in the N. C. 
convention that failed to ratify; loc. cit. IV, 87, 93-4, 
152, 165, 167, 192. The report of the debate in the 
Mass. Convention on the judiciary appears in only very 
abbreviated form on account of the illness of the reporter 
at this stage of the proceedings. But Samuel Adams 
made a direct allusion to the power of judicial review 
affecting acts of Congress ; loc. cit. II, 142 ; and other 
speakers used language showing their recognition of 
some such power in courts; see ib. 97-8, 100-6, iio-ii, 
138, 154, 167, 171-4. In the Va. convention, judicial 

°° See the present writer in 7 Mich. Law Rev., 543 ffg. 


review was referred to, either as touching acts of Con- 
gress or in more general terms, no fewer than twelve 
times: loc. cit. Ill, 182 and 309 (Henry) ; 197, 208, and 
431 (Randolph) ; 287 and 498 (Pendleton) ; 409 
(Nicholas) ; 441 (Mason) ; 484-5 (Madison) ; 503 
(Marshall); 514 (Granger). Much of this and further 
evidence is presented by Mr. Horace Davis in his article 
in the Am. Pol. Sc. Rev. Mr. Davis himself, however, 
endeavors to reject the obvious verdict of this evidence. 
The explanation of his attitude is that he confuses the 
question of whether judicial review of acts of Congress 
was believed to be a feature of the new system with the 
question whether it was expected to prove an effective 
limitation upon Congress. The absence of a Bill of 
Rights and the presence of the "general welfare" and 
"necessary and proper" clauses caused opponents of the 
Constitution to charge that the judges would never be 
able to stamp any act of Congress as invalid, that Con- 
gress' power was practically unlimited to begin with. 
See Elliot, I, 545; H, 314-15, 318, 321-2; IV, 175; also, 
McMaster and Stone, Pennsylvania and the Federal Con- 
stitution, 467, 611; also, Ford, Pamphlets, 312; also and 
especially. Federalist No. 33. Said Whitehill in the Pa. 
convention : "Laws may be made in pursuance of the 
Constitution, though not agreeably to it; the laws may 
be unconstitutional" : McMaster and Stone, loc. cit. 

II — The Doctrine of Departmental Construction of the 
Constitution. There is an early hint of this doctrine in 
Jefferson's Va. Notes, which is criticized by Madison in 
Fed. No. 49. A much more explicit statement of the 
doctrine is that of Abraham Baldwin in the U. S. Senate, 
Jan. 23, 1800: Farrand, III, 383. For Jefferson's view 
formulated late in life, see his Writings (Mem. Ed.), 
XV, 212 ffg. Madison as President took the position that 
he had no discretion in the matter of enforcing, not only 
decisions of the judiciary, but acts of Congress : Am. St. 
Papers, Misc., II, 12 (1809). Professor McLaughlin, on 
the other hand, refers approvingly to old Gideon Welles' 
attempt "to make General Grant see that he was not 
under constitutional obligation to obey an act if that act 


was unconstitutional. Grant maintained that he was 
under obligations to obey a law until the Supreme Court 
declared it unconstitutional. Such is the natural po- 
sition of the layman." But even Welles had no idea of 
maintaining that the President would not be bound by a 
decision of the Supreme Court: Diary of Gideon 
Welles, III, 176-80. Furthermore, on the precise ques- 
tion in issue between Welles and Grant, I must express a 
preference for the views of the latter. Obedience to the 
mandates of the legislature till they are proved to be 
void is one of the risks of office under our system. The 
contrary view leads to irresponsibility and disorder. 
Lincoln's views expressed in criticism of the Dred Scott 
^decision reveal some contradictions: see Haines, 265-9. 
^Lincoln himself virtually admitted that, in disobeying the 
Thandate of the court in Merryman's case he had violated 
the Constitution in one particular, but pleaded the neces- 
sity he had been under to do so in order to save it as 
a whole.! But then, is the President always bound to 
take the^ measure of his powers from the Supreme 
Court? The answer is, that by the Supreme Court's 
own view of the Constitution many of the powers vested 
by it in the President are to be exercised at his discre- 
tion : Martin v. Mott, 12 wheat. 19. One such power is 
doubtless the veto power. On the other hand, the Presi- 
dent can exercise only his constitutional powers, cannot 
in other words, in the guise of exercising his discretion, 
transcend their limits. Another question relevant to the 
general matter under discussion is as to the application 
of the doctrine of stare decisis in constitutional cases. 
There can be no doubt that the doctrine applies in such 
cases : Story i Comms. §§ 377-8. On the other hand, 
however, the doctrine is in nowise necessary to the 
theory of judicial review itself. jThe Supreme Court is 
not bound by its own erroneous decisions : Genessee 
Chief V. Fitzhugh, 12 How. 456; the Legal Tender Cases, 
12 Wall. 457. IBut the court alone can authoritatively 
pronounce its decisions erroneous, and anyone else who 
presumes to ignore the precedents does so at his risk. 
Also, as said above, executive officers, save where con- 
stitutionally vested with a discretion, must follow the 


decisions as they find them, and also the acts of the legis- 
lature. Such is the nature of the executive office. For 
further discussion of the applicability of the doctrine of 
stare decisis in constitutional cases, see Dorr v. U. S., 
195 U. S. 138, 154; 58 Cent. L. J. 29; 3 Harv. Law Rev. 
125 ; 3 Mich. Law Rev. 89, ffg. The argument for judi- 
cial review based on the official oath is of course an ar- 
gument for departmental construction of the constitution. 
It was well answered by J. Gibson in his famous dissient 
in Eakin v. Raub, in the following words : "The official 
oath . . . relates only to the official conduct of the 
officer, and does not prove that he ought to stray from 
the path of his ordinary business to search for violations 
of duty in the business of others ; nor does it, as supposed, 
define the powers of the officer": 12 Serg. and Rawle 
(Pa.) 330, 353. Marshall cites the oath taken by the 
judges to uphold the constitution apparently in support of 
his contention that the constitution is law. 

Ill — The True Meaning of Coke's Dictum : Coke was 
what to-day would be called a "political judge" ; and it 
is possible that there was a period when, the King and 
Parliament being at loggerheads and legislation accord- 
ingly impossible, he dreamed of giving the law to both. 
His final and matured views on the power of Parliament, 
however, are those stated in the Fourth Book of his Insti- 
tutes, in the following passages : "And it is to be known 
that the lords in their house have power of judicature 
and the commons in their house have power of judica- 
ture, and both houses together have power of judicature 
(p. 23). . . . Of acts of Parliament, some be introduc- 
tory of a new law [n.b.] and some be declaratory of the 
ancient law and some be of both kinds (p. 25). . . . Of 
the power and jurisdiction of the Parliament for making 
of laws in proceeding by bill, it is so transcendent and 
absolute as it cannot be confined either for causes or 
persons within any bounds (p. 36). . . . Yet some ex- 
amples are desired : . . . To attaint a man of treason 
after his death. ... It may bastard a child that by law 
is legitimate. ... To legitimate one that is illegitimate" 
(ib.). His ideas of "common right and reason" were 


therefore not very rigorous. Returning to Bonham's 
Case, we find him citing in support of his dictum a 
case arising in the manor of Dales, where it was held that 
an act of Parliament conferring in general terms upon 
a specific person the jurisdiction of cases arising in the 
manor did not apply to a case to which that person was 
an interested party: 8 Rep. 118-20. Judged by this in- 
stance all that he means by the word "void," as applied 
to an act of Parliament, is "inoperative in the particular 
case when interpreted by Common Law standards." With 
the dictum should be compared his much later words on 
p. 37 of the Fourth Book of the Institutes : "I had it of 
Sir Thos. Gawdye, Knight, a grave and reverend judge 
of the King's bench, who lived at that time, that Henry 
VIII commanded him to attend the chief justices and to 
know whether a man that was forthcoming might be at- 
tainted for high treason by Parliamient and never called to 
his answer. The judges answered that it was a dangerous 
question, and that the High Court of Parliament ought to 
give examples to inferior courts for proceeding according 
to justice, and no inferior court could do the like, and 
they thought that the High Court of Parliament would 
never do it. But being by the express commandment 
of the King and pressed by the said earl to give a direct 
answer, they said that if he he attainted by Parliament, 
it could not come in question afterwards, whether he 
were called or not to answer. And albeit their opinion 
was according to law, yet might they have made a better 
answer, for by the statutes of Magna Carta, Cap. 29, 5 
Edw. Ill Cap. 9, and 28 Edw. HI Cap. 5, no man ought to 
be condemned . without answer, etc., which they might 
have certified but facta tenent multa quae fieri prohiben- 
tur; the act of attainder being passed by Parliament did 
bind, as they resolved." The position is substantially 
identical with that afterward taken by Blackstone. See 
text. See also 4 Mass. 529. 

IV — Mingling of Legislative and Judicial Powers : 
For Parliament's relation to the standing law in the 17th 
century, see the instructive pages in Mcllwain, High 
Court of Parliament, etc., ch. Ill, especially pp. 109-66. 


Said Harrington in his Oceana : "Wherever the power 
of making law is, there only is the power of interpreting 
the law so made" ; loc. cit. 163. See also Blackstone, 
I Comms. 160. For the case of the colonial legislatures, 
see Works of James Wilson (Andrews' Ed.), II, 50; 
Minot, History of Massachusetts, I, 29 ; Hutchinson, 
History of Massachusetts, etc., I, 30, II, 250, 414; 15 
Harvard Law Rev. 208-18; Massachusetts Acts and Re- 
solves (to 1780), passim; Journal of Virginia House of 
Burgesses, passim. For the case of the early State legis- 
latures, see Federalist Nos. 48 and 81, the latter of which 
is quoted infra on this subject. See also Jefferson's 
"Virginia Notes" in Works (Mem. Ed.) II, 160-78; also 
the Reports of the Pennsylvania Council of Censors of 
their sessions of Nov. 10, 1783, and June i, 1784, in The 
Proceedings Relative to the Calling of the Conventions 
of 1776 and 1790, etc. (Harrisburg, 1825), pp. 66-128; 
also, Tucker's Blackstone, I, app. 81-3, 1 19-21, 125-6. 
See also Langdon of New Hampshire's letters complain- 
ing of acts of the State legislature annulling judgments, 
in New Hampshire State Papers, XI, 812, 815, and 
XXII, 749, 756, (June, 1790). For a concrete case in 
N. H., as late as 1791, see the Am. Hist'l Rev. XII, 348- 
50, and Prof. W. F. Dodd's remarks concerning it. For 
concrete instances in Massachusetts under the consti- 
tution of 1780, see Acts and Resolves under following 
dates: 1780, May 5, June 9, Sept. 19; 1781, Feb. 12, 
Apr. 28, Oct. 10; 1782, Feb. 13, 22, Mar. 5, 7, May 6, 7, 
June 7, 18, Sept. 11, Oct. 4, Nov. 2; 1783, Feb. 4, 25; 
Mar. 17, Oct. 11; 1784, Feb. 3; 1785, Feb. 28, Mar. 17; 
1786, June 27, July 5; 1787, Feb. 26, Mar. 7, July 7; 
1790, Feb. 25, 26, Mar. 9; 1791, Feb. 24. See also Kil- 
ham V. Ward et al., 2 Mass. 240, 251 ; also. Proceedings 
of the Massachusetts Historical Society, for 1893, p. 
231 ; also Story's Commentaries, § 1367. Further testi- 
mony will be found in a speech by Roger Sherman in 
his contemporary essays on the Constitution ; Moore's 
History of North Carolina ; Jeremiah Mason's Memories ; 
Plumer's Life of Wm. Plumer; various judicial his- 
tories of Rhode Island, where the practice continued till 
1842. The published Index to Rhode Island legislation 


to 1842 is immensely instructive in this connection. For 
the case of Pa., see Roscoe Pound in 14 Col. Law Rev. 
8 (footnote), citing Debates of Pa. Const'l Conv. (1873) 
III, s-20. See also such cases as Rep. v. Buffington, 1 
Dall. 61 ; Calder v. Bull, 3 Dall. 386 ; Watson v. Mercer, 
8 Pet. 88; Satterlee v. Matthewson, 2 Pet. 380; Wilkin- 
son v. Leland, ib. 657. The overturn of this practice 
through a new interpretation of the principle of the 
separation of powers is traced infra. See also my article 
on the Doctrine of Vested Rights in 12 Mich. Law Rev. 

V — Alleged Precedents for Judicial Review, antedat- 
ing the Convention of 1787: The earliest "precedent" . 
claimed for judicial review is the Va. case of Josiah I 
Philips (1778), but the claim is without any basis in 
fact. The origin of the claim is to be found in the 
following passage on page 293 of the appendix to the 
first volume of Tucker's Blackstone (1803) : "In May 
1778, an act passed in Va. to attaint one Josiah Philips 
unless he should render himself to justice within a limited 
time. He was taken after the time expired, and was 
brought before the general court to receive sentence of 
execution pursuant to the direction of the act. But the 
court refused to pass the sentence and he was put upon 
his trial according to the ordinary course of law. This 
is a decisive proof of the importance of the separation 
of the powers of government and of the independence of 
the judiciary. A dependent judiciary might have exe- 
cuted the law whilst they execrated the principles upon 
which it was founded." Tucker, a zealous champion of 
judicial review, is here seeking to create a precedent out 
of hand. The myda is elaborated in an ingenious series 
of conjectures byj Professor W. P. Trent in the Am. 
Hist'l Rev. I, 444K'g. The recollection in the Va. rati- 
fying convention ^eems to have been that Philips was 
executed under the attainder: Elliot III, 66-7, 140, 
298-9. This however is wrong. In a letter to Wm. Wirt 
of Aug. 15, 1815, Jefferson says: "I remember the case, 
and took my part in it. Philips was a mere robber, who 
availing himself of the troubles of the times, collected 
a banditti, retired to the Dismal Swamp, and from thence 


sallied forth, plundering and maltreating the neighbor- 
ing inhabitants, and covering himself, without authority, 
under the name of a British subject. Mr. Henry, then 
governor, communicated the case to me. We both 
thought the best proceeding would be by bill of attainder, 
unless he deHvered himself up for trial within a given 
time. Philips was afterwards taken; and Mr. Randolph 
being Attorney General and apprehending he would 
plead that he was a British subject, taken in arms in 
support of his lawful sovereign, and as a prisoner of 
war entitled to the protection of the law of nations, he 
thought the safest proceeding would be to indict him as 
a felon and a robber. Against this, I believe. Philips 
urged the same plea; but was overruled and found 
guilty." This letter was communicated to me from the 
Jefferson MSS. by my friend Mr. W. S. Carpenter, but 
it or letters to the same effect will be found in Jeffer- 
son's published works. In his article entitled A Phantom 
Precedent, 48 Am. Law Rev. 321-44, Mr. Jesse Turner 
also brings forward strong evidence to show that, con- 
trary to Tucker's statement that Philips "was taken after 
the time [set by the act] expired," he was taken before 
that time. Certainly it is a strange idea that a court 
would, in 1778, have pronounced a bill of attainder un- 
constitutional when every legislature in the country was 
passing such acts, and especially in view of the fact 
that as late as 1800 the Supreme Court of the U. S. 
itself held that to pass such acts was within legislative 
power: 4 Dall. 13. — The second "precedent" brought 
forward for judicial review before the convention of 
1787 is the N. J. case of Holmes v. Walton (1780): 
Austin Scott in Am. Hist'l Rev. IV, 456 ffg. The case 
dealt with the question of trial by jury and affords a 
clear instance of the court's refusing to carry out the 
will of the legislature on the ground that it transgressed 
the constitution. The attitude of the court drew forth 
much unfavorable comment, and though the legislature 
amended the objectionable act, it met the views of the 
court only in part. The case is referred to by Gouver- 
neur Morris of Pa. five years later. He did not however, 
he said, want the judges in Pa. to exercise any such 


power: Sparks, Life of Gouverneur Morris, III, 438. 
C. J. Brearley of the N. J. court that decided Holmes v. 
Walton was a member of the Convention of 1787. — The 
third "precedent," the Va. case of Com. v. Caton, 4 Call 
5 (1782), is brought forward merely for its dicta. Chan- 
cellor Wythe and Judge Blair both asserted the right of 
the court to resist an unconstitutional act of the legisla- 
ture, on semi-revolutionary grounds. C. J. Pendleton 
was doubtful ; see note 54, supra. Wythe and Blair 
were both members of the Convention of 1787 and Blair 
was one of the first bench of the Supreme Court of the 
U. S. — The fourth "precedent," a municipal court easel 
from N. Y. City (1783) called Rutgers v. Waddington, 
is urged with even less justification than the Philips case. 
It was a marked triumph for the notion of legislative 
sovereignty: see my article in 9 Mich. Law Rev. 115-16. 
— The fifth "precedent" is from Conn., the Symsbury 
Case: Kirby, 444 iJg. (1785). In this case a legislative 
act making a land grdnt was given a restricted construc- 
tion so as to prevent its invading a previous grant. The 
court invoked fundamental principles, and altogether the 
case |may be regarded as a somewhat bold application 
of Coke's dictumj The decision of the court stood — if 
it stood — only because the legislature did not choose to 
review it: cf. Calder v. Bull, 3 Dall. 386. — The sixth 
"precedent," from N. H., is vouched for by Mr. Meigs 
in 47 Am. Law Rev., 684, on the strength of the follow- 
ing passage from Plumer's Life of William Plumer 
(P- 59) '■ "I entered my protest singly and alone against 
the bill for the recovery of small debts in an expeditious 
way and manner, principally on the ground that it was 
unconstitutional. The courts so pronounced it, and the 
succeeding legislature repealed the law." These words 
were apparently written by Plumer himself of the year 
1785 or 1786, but several years later. If this is the case 
referred to by Jeremiah Mason in his Memoirs (p. 26), 
its claim to be considered a true case of judicial review 
is very doubtful. I strongly suspect that this is an- 
other instance of precedents made to order. For a true 
case of judicial review in N. H. in 1791, invoking the 
principle of the separation of powers, see Professor 


W. F. Dodd in Am. Hist'l Rev. XII, 348-50.— The 
seventh "precedent" is offered on the strength of a let- 
ter by one Cutting to Jefferson in 1788, in which it is 
asserted that the Mass. court had recently declared an 
act of the legislature unconstitutional and that the legis- 
lature had in consequence repealed the act. A thorough 
search however fails to reveal any such case or act of 
repeal: A. C. Goddell, 7 Harv. Law Rev. 415 ffg. The 
case was probably one in which the court had ruled the 
act of the legislature involved to be repugnant to the 
treaty of 1783 with Great Britain. The Mass. legislature 
had repealed all such acts April 20, 1787, by gen- 
eral description, in conformity with the demand of Con- 
gress: See my National Supremacy, ch. Ill (1913). 
The only question for the court, therefore, was whether 
the act before it had been repealed or not. — The eighth 
"precedent" is the R. I. case of Trevett v. Weeden, al- 
ready referred to. In this case, as Coxe points out, the 
statute was "repelled," but on the ground allowed by 
Blackstone, that it was self-contradictory and impossi- 
ble to be performed, since it required that those violating 
it be tried nnthout a jury but in accordance with the 
"Law of the Land." (Nonetheless the case passed as a 
true constitutional case and met with wide-spread ap- 
proval: McMaster, History, I, 338 ffg. It is clearly the 
case that was foremost in the minds of the members of 
the Convention of 1787 at the opening of the Con- 
vention. Far more important than the opinions of the 
judges was Varnum's argument for defendant, in which' 
the written constitution is thrown about certain funda-l 
mental principles of the Common Law and the line is 
drawn between "legislative" and "judicial" power. To 
the former alone, Varnum contends, belongs the power 
of amending or altering the laws, to the latter "the sole 
power of judging^ of the laws" : see the excerpt from the 
argument in Haines, p. 90. The argument is given in 
extenso in Coxe. — Finally reference should be made to 
the early case of Winthrop v. Lechmere in which, in 
1727, the British Privy Coucil "held that an act of the 
colony of Conn, relating to the division of the property 
of an intestate among his children was 'null and void 


as being contrary to the law of the realm, unreasonable, 
and against the tenor of their character, and conse- 
quently the province had no power to make such a 
law' " : Haines, p. 65. Professor Thayer urges truly that 
this decree was a judicial decree: Cases on Constitu- 
tional Law, 39-40. It was argued before the Council as 
a case at law: see C. M. Andrews in Select Essays in 
Anglo-Am. Legal Hist., I, 445. But this fact does not 
make it a precedent for judicial review. The provincial 
legislatures were in law mere corporations possessed of 
the powers of legislation of municipal councils. Such 
bodies to this day, as a general proposition, must not exer- 
cise their powers "unreasonably" nor to the transgression 
of the Common Law : see the following Mass. cases : 3 
Pick. 462, 6 ib. 187, 1 1 ib. 168, 16 ib. 121. The problem of 
judicial review arises, however, in the first instance, be- 
cause the legislature was supposed to possess supreme 
judicial powers, but latterly because of the attribution to 
the legislature of sovereignty. The application of the 
idea of sovereignty to the State legislatures creates an 
absolutely impossible gulf between such alleged prece- 
dents as Winthrop v. Leckmere and the institution of 
judicial review in the U. S. Moreover, these cases are 
never referred to by those who developed the argument 
for judicial review. 

VI — -The Establishment of Judicial Review in the 
States : By 1803, the following States had either been 
definitely committed to the doctrine of judicial review by 
judicial decision or practically so by judicial dicta : North 
Carolina (1787), New Hampshire (1791), South Caro- 
lina (1792), Virginia (1788, 1793), Pennsylvania (1793, 
1799), New Jersey (1796), Kentucky (1801), Maryland 
(1802). The Kentucky Constitution of 1792, Art. XII, 
p. 28, says : "All laws contrary ... to this Constitution 
shall be void." Prof. Thayer, in his study in 7 Har- 
vard Law Rev., 129 ffg., contended that this article 
specifically authorized judicial review; but the Pennsyl- 
vania constitution of 1776 and the Massachusetts consti- 
tution of 1780 contained equivalent provisions without 
producing judicial review. Of interest in this connection 
is the opinion of the judges of the Pa. Supreme Court, of 


Dec. 22, 1790, to Gov. Mifflin holding that certain offices 
had been vacated by the new constitution. The ground of 
the opinion is indicated by the ffg. words: "We think 
the constitution to be paramount [to] the acts of the 
legislature": Pa. Archives, ist Ser., XII, 36. In Pa. 
however, because of the persistence of the power of the 
legislature in the matter of private bill legislation, 
judicial review continued on a precarious basis till a late 
date. In Emerick v. Harris, i Binn. 418 ffg. (1809), 
though reference is made to Marshall's argument in 
Marbury v. Madison, the court's reliance seems to 
be chiefly on the duty of the -judge by his oath of 
office and the equality of the judiciary with the other 
departments, both of which arguments, as we saw above, 
are quite inadequate. In his famous dissent in 
Bakin V. Raub, 12 S. and R. 330 ffg. (1825), Justice 
Gibson (later chief justice), defining the constitution as 
an act of "extraordinary legislation", and contending that 
the courts had under it only their Common Law powers 
of administering the ordinary law, rejected judicial re- 
view as "a professional dogma," held "rather as a mat- 
ter of faith than of reason." The power of keeping the 
legislature within its constitutional bounds, he contended, 
belonged to the People, its authors. Subsequently as 
chief justice, Gibson changed his opinion "from exper- 
ience of the necessity of the case" : Harris v. Clymer, 2 
Barr (Pa.) 277, 281. In N. Y., where judicial review 
was destined to receive its final form, the first judicial 
claim to the power was made in Dash v. Van Kleeck, 7 
Johns. 477 fiEg. (181 1). In Gardner v. Newburgh, 2 
Johns. Ch. 162 ffg., five years later, Kent enjoined the 
enforcement of an act of the legislature on the ground 
of its invalidity. For the persistence of the idea of 
judicial review on the basis of fundamental law, apart 
from the written constitution, see my article in 12 Mich. 
Law Rev. 247 ffg. ; also, C. J. Chase in the License Tax 
Cases, 5 Wall. 469. The first R. I. case under the con- 
stitution of 1842, Taylor v. Place, 4 R. I. 339, states the 
doctrine of the separation of powers at length. An in- 
teresting Mass. case showing the effect of the doctrine 
of departmental equality upon judicial logic is that of 


Wellington et al., Petitioners, i6 Pick. 87 (1834). Here 
we find C. J. Shaw, after first stating the correct doctrine 
of judicial review as flowing from the nature of judicial 
power in relation to the standing law, then introducing 
the notion of three coordinate departments, whereupon 
he proceeds as follows (p. 96) : "Perhaps ... it may 
well be doubted whether a formal act of legislation can 
ever, with strict legal propriety, be said to be void; it 
seems more consistent with the nature of the subject 
... to treat it 'as voidable'." In 24 Pick. 352 (1837), 
he abandons this refinement. The history of judicial re- 
view in the States may be, generally speaking, divided 
into the following periods: 1-1780-87, its tentative sug- 
gestion; 2-1787-1800, its rapid advance, under Federal- 
istic influence; 3-1800-1810, its temporary check, under 
Jefifersonian influence; 4-1810-1825, its more aggressive 
exercise, under the influence of Marshall and Kent and 
of the doctrine of "vested rights"; 5-1825-45, its general 
recognition, but rare use, on account of the influence of 
the Jacksonian Democracy and the rise of the notion of 
the "police power"; 6-1845-1857, a period of diversity, 
rise of new doctrines of Constitutional Law, conserva- 
tism of the N. Y. courts in sharp contrast at the close of 
the period to more democratic tendencies in many other 
States, protests against "judicial despotism" from certain 
courts brought to a climax in criticism of the Dred Scott 
decision; 7-1857-1890, judicial review generally used 
very moderately, under the influence of the doctrine of 
the "police power" as developed by the U. S. Sup. Ct. ; 
8-1890-1910, a tremendous expansion of judicial review 
in all jurisdictions, under the influence of the modern 
definitions of "liberty," "property," and "due process of 
law"; to-day, reaction in favor of legislative discretion, 
under the leadership of the U. S. Sup. Ct. Throughout, 
the practice of judicial review in two States, New York 
and Massachusetts, has been of leading importance from 
the point of view of the history of Constitutional Law, 
but the North Carolina, Tennessee, New Hampshire, 
Vermont, Pennsylvania, Illinois, and Iowa courts have 
also made influential contributions from time to time. 
It may be safely said, I think, that more statutes were 


invalidated in New York before the Civil War than in 
any two other States together. On the other hand, in 
Virginia, where judicial review was at first so strongly 
asserted, only two acts of the legislature were pro- 
nounced void by the court of appeals between 1793 and 
i860, and one of these had been repealed some years 
earlier. During the same period, however, about twenty- 
five cases were brought before that court in which the 
constitutional question was raised. 



In the Webster-Hayne debate the South Carolinian 

set out from the following premises, taken from the 

Kentucky Resolutions of 1798: 

"Resolved that the several States comprising the 
United States of America ... by a compact under the 
style and title of a Constitution for the United States 
and of amendments thereto . . . constituted a general 
government for specific purposes, reserving each State 
to itself the residuary mass of right to its own self- 
government . . .; that to this compact each State ac- 
ceded as a State . . . ; that as in all other cases of 
compact among parties having no common judge, each 
party has an equal right to judge for itself, as well of in- 
fractions as of the measures of redress."^ 

This position Webster met with the contention that 
the Constitution is not a- compact among States but, 

'Writings of Thomas Jefferson (Ford Ed.) VII, 289. The 
third of the Va. resolutions of the same year reads as follows : 
"Resolved . . that this assembly doth explicitly and peremp- 
torily declare that it views the powers of the Federal govern- 
ment as resulting from the compact to which the States are 
parties . . and that in case of a deliberate, palpable, and dan- 
gerous exercise [by the Federal government] of . . . powers not 
granted by the said compact, the States who are parties thereto, 
have the right and are in duty bound to interpose for arresting 
the progress of the evil and for maintaining within their re- 
spective limits, the authorities, rights and liberties appertaining 
to them": Writings of James Madison (Hunt lEd.) VI, 326. 
Note that Madison does not say that the States are the parties 
(i. e. the only parties) to the compact, but simply that they are 
■'parties." This ambiguous position, however, he abandons in 
his Report of 1799- 



by its own declaration, a law ordained by the people. 
But, rejoined Calhoun, by what people ? and answered : 
The people of the several States, acting as so many 
sovereign political communities, since in the first place, 
it is only a sovereign political community that can 
enact law and since, in the second place, the States 
were in 1787 the only sovereign political communi- 
ties on the continent. The Constitution is then, he 
proceeded, law within the several States by their own 
ordination, and may be repealed by them at any time, 
since sovereignty is inalienable. But even before this 
position was completely thought out. Story had 
argued in his Commentaries that the language of the 
Preamble of the Constitution was to be taken literally, 
and that the Constitution was ordained and estab- 
lished, not by the people of the several States, but by 
the people of the United States, acting as one people, 
though within the several States. In his first Inaugu- 
ral Lincoln adopted this argument and contended fur- 
ther that, far from the States being the only political 
communities at hand in 1787, the Union was older 
than the States. 

The great historical difficulty in the way of Cal- 
houn's theory of the nature of the Union and the Con- 
stitution, once at any rate it is indicated, is obvious 
enough. It consists in the inversion it effects of the 
relation between governments and people that is stated 
by the Declaration of Independence, that all just gov- 
ernments rest on the consent of the governed. Even 
Calhoun admitted, what indeed would have been 
undeniable by the hardiest theorizer, that the govern- 


ment of the United States is a government over in- 
dividuals.- Yet he contended that this government did 
not rest upon the consent of these individuals, but 
was foisted upon them by the several States. True, 
the Articles of Confederation rested upon the consent 
of the States merely, but then, that was not a govern- 
ment over individuals. And the difficulty in question 
is certainly not lessened by the dogma that inalienable 
sovereignty was in 1787 a property of the States as 
political entities. For either this dogma assumes to 
interpose an absolute veto upon the right of the people 
to revolutionize their governments or it does not. If 

' The following is an excellent statement of this principle by 
Ellsworth in the Connecticut convention : "We see how neces- 
sary for union is a coercive principle. No man pretends to the 
contrary : We all feel and see this necessity. The only question 
is, shall it be a coercion of law or a coercion of arms? There 
is no other possible alternative. Where will those who oppose 
a coercion of law come out? Where will they end? A neces- 
sary consequence of their principles is a war of the States one 
against the other. I am for coercion by law, — that coercion 
which acts only upon delinquent individuals. This Constitution 
does not attempt to coerce our sovereign bodies. States, in their 
political capacity. No coercion is applicable to such bodies but 
that of an armed force. . . But this legal coercion singles out 
the guilty individual and punishes him for breaking the law of 
the Union" : Elliot, II, 197 (The edition used in preparing this 
article is the Phila. edition of 1881). Ellsworth, however, some- 
what exaggerates the immunity of the States from direct con- 
trol by the National Government. As Madison points out in 
Federalist No. 39, "In several cases . . . they must be viewed 
and proceeded against in their collective political capacities 
only": pp. 237-8 (Lodge's Ed.). The contrast between the Con- 
federation as a government over States in their corporate 
capacities and the government proposed by the Constitution as 
one over individuals is made with great effect by Hamilton in 
Fed. No. IS- 


it does not, however, then the theory of which the 
dogma just recited is an essential part does not effec- 
tively contradict the contention that the establishment 
of the Constitution of 1787 was an act of popular 
revolution; while if it does, it absolutely contradicts 
the most fundamental article of the political creed 
upon which all American governments are founded. 
The truth is that, in the estimation of the men of 
1787, the establishment of the Constitution was an 
act of popular revolution, which not only overturned 
the Articles of Confederation, but broke through the 
State constitutions also at essential points. The con- 
ventions that ratified the Constitution of 1787 were 
in no case provided for by the existing State consti- 
tutions. In some cases indeed these constitutions for- 
bade their alteration or amendment for stated terms 
of years. But the adoption of the Constitution of 
1787 did nevertheless alter every one of these instru- 
ments of government in the most radical fashion.^ 

' Note the following passage from the debate of Aug. 31, in 
the Convention, touching the method of ratification : "Madi- 
son : . . . The people were in fact the fountain of all power, 
and by resorting to them all difficulties were got over . . . Mr. 
King observed that the constitution of Mass. was made un- 
alterable till the year 1790, yet this was no difficulty with him. 
The State must have contemplated a recurrence to first prin- 
ciples before they sent deputies to this Convention" : Farrand, II, 
476-7. See also Madison's words on the floor of the Convention 
June 19: "A majority would have the right to bind the rest, 
and even to form a new Constitution for the whole." This 
idea was brought forward to meet the argument that the Con- 
vention had no right to cast the Arts, of Confed. aside, since 
they comprised a social compact among the States. But the 
idea itself plainly represents Madison's own theory of the 
rights of individuals under the social compact. Note also Wil- 


All this, however, is but introductory. The main 
purpose of this article is to set forth the most import- 
ant evidence bearing on the question of the historical 
validity of the venerable antithesis: The People of 
the United States vs. the People of the States. This 
evidence falls into two parts : that drawn from dis- 
cussions in the State ratifying conventions of the 
opening phrase of the Constitution, and therefore 
immediately antedating the establishment of the Con- 
stitution; and that drawn from the congressional de- 
bates of 1789 on certain propositions of amendment 
to the Constitution, and therefore immediately sub- 
sequent to the establishment of the Constitution. It 
will be best, I think, to give this evidence first and 
then the conclusions which it suggests afterward. 

I — The evidence from the ratifying conventions, 

then, is as follows : 

King in the Massachusetts convention: "The intro- 
duction to this Constitution is in these words : 'We, the 
people' etc. The language of the Confederation is, 'We, 
the States' etc. The latter is a mere federal govern- 
ment of States. Those therefore that assemble under 
it have no power to make laws to apply to the individuals 
of the States confederated."* 

son's words on the floor of the Convention, Aug. 30: "We 
must, in this 'Case [that is the ratification of the Constitution], 
go to the original powers of society. The house on fire must 
be extinguished without a scrupulous regard to ordinary rights" : 
Farrand, II, 468-9. But see especially the Federalist, Nos. 40, 
43, and 45, quoted infra. 

* Elliot, II, SS. Note that the contrast is between States and 
People, and that nothing is made of the phrase "of the United 
States." The same rule holds for the ensuing quotations. I 
may add here that the evidence given in the text is, to my 
belief, substantially complete for the State conventions on the 
subject discussed. 


Wilson in tlie Pennsylvania convention: "In this 
Constitution all authority is derived from the people. 
. . . The leading principle in politics and that which 
pervades the American constitutions is that the supreme 
power resides in the people. This Constitution . . . 
opens with a solemn and practical recognition of that 
principle : 'We the people of the United States, in order 
etc. do ordain and establish this Constitution for the 
United States of America'. It is announced in their 
name — it receives its political existence from their 
authority. . . . What is the necessary consequence? 
Those who ordain and establish have the power, if they 
think proper, to repeal and annul. "= 

And again : "The secret is now disclosed, and it is 
discovered to be a dread that the boasted State sover- 
eignties will, under this system, be disrobed of part of 
their power. . . . Upon what principle is it contended 
that the sovereign power resides in the State govern- 
ments? The honorable gentleman has said truly that 
there can be no subordinate sovereignty. Now if there 
cannot, my position is, that the sovereignty resides in 
the people; they have not parted with it; they have 
only dispensed with such portions of power as were 
conceived necessary for the public welfare. This Con- 
stitution stands upon this broad principle. I know very 
well, sir, that the people have hitherto been shut out of 
the Federal Government, but it is not meant that they 
should any longer be dispossessed of their rights. In 
order to recognize this leading principle, the proposed 
system sets out with the declaration that its existence 
depends upon the supreme authority of the people 
alone. . . When the principle is once settled that the 
people are the source of authority, the consequence is, 
that they may take from the subordinate governments 
powers with which they have hitherto trusted them and 
placed those powers in the General Government, if it is 
thought that there they will be productive of good. 
They can distribute one portion of power to the more 
contracted circle called State governments. They can 

'lb. 434-S. 


furnish another proportion to the government of the 
United States."" 

And again: "The truth is that the supreme, absolute, 
and uncontrollable authority remains with the people. 
. . . His [Findley's] position is, that the supreme power 
resides in the States, as governments; and mine is, that 
it resides in the people, as the fountain of government. 
... I consider the people of the United States as form- 
ing one great community; and I consider the people of 
the different States as forming communities again on a 
lesser scale. . . . Unless the people are considered in 
these two views, we shall never be able tO' understand 
the principle on which this system was constructed. I 
view the States as made for the people, as well as by 
them, and not the people as made for the States. The 
people therefore have a right, whilst enjoying the un- 
deniable powers of society, to form either a general 
government or State governments, in what manner they 
please, or to accommodate, them to one another and by 
this means preserve them all. . . . 'Governments are in- 
stituted among men, deriving their just powers from 
the consent of the governed.' '"' 

And again: "There can be no compact unless there 
are more parties than one. . . . 'The Convention were 
forming compacts!' With whom? ... I am unable to 
conceive who the parties could be. The State govern- 
ments make a bargain with one another; that is the 
doctrine that is endeavored to be established by gentle- 
men in opposition; their State sovereignties wish to be 
represented ! But far other were the ideas of this Con- 
vention, and far other are those conveyed in the sys- 
tem itself."' 

Henry in the Virginia convention: "What right had 

°Ib. 443-4. Note the equivalent use of the terms States and 
governments. Compare Hamilton in Fed. No. 1$: "The great 
and radical vice in the construction of the existing confedera- 
tion is in the principle of legislation for States or governments^ 
in their corporate or collective capacities": p. 86 (Lodge). 

' Loc. cit. AZ6-7. 

'lb. A97- 


they to say 'We the people' . . . instead of 'We the 
States'? States are the characteristic and soul of a 
confederation. If the States be not the agents of this 
compact it must be one great consolidated, national gov- 
ernment of the people of all the States. . . . The people 
gave them no power to use their name. That they ex- 
ceeded their power is perfectly clear. "^ 

And again: "Have they said, We the States? ... If 
they had, this would be a confederation. It is other- 
wise, most clearly, a consolidated government. The 
question turns, sir, on a poor little thing, — the expres- 
sion, We the people, instead of the States of America. 
. . . Here is a resolution as radical as that which sepa- 
rated us from Great Britain."^" 

Randolph in the Virginia convention : "The gentle- 
man then proceeds and inquires why we assumed the 
language of 'We the people'? I ask, why not? The 
government is for the people ; and the misfortune was 
that the people had no agency in the government 

Pendleton in the Virginia convention : "We the 
people, possessing all power, form a government, such 
as we think will secure happiness. . . . But an objection 
is made to the form : the expression. We the people, 
IS thought improper. Permit me to ask the gentleman 
who made this objection, who but the people can dele- 
gate powers? Who but the people have a right to form 
government? ... If the objection be, that the Union 
ought to be not of the people, but of the State govern- 
ments, then I think the choice of the former very happy 
and proper. "^^ 

Lee of Westmoreland in the Virginia convention : 
"He [Henry] then adverted to the style of the govern- 
ment and asked what authority they had to use the ex- 

" Elliot, III, 22-3. Note that Heniry, who was opposing 
adoption, does not find fault with "We, the People of the U. S." 
but with "We, the People." 

'"lb- 44. 

"/&. 28. 

"/6. 35. 


pression 'We the people,' and not. We the States. This 
expression was introduced into that paper with great 
propriety. This system is submitted to the people for 
their consideration, because on them it is to operate, if 
adopted. ... It is now submitted to the people of Vir- 
ginia. . . . Suppose it was found proper for our adop- 
tion, and becoming the government of the people of Vir- 
ginia, by what style should it be done?"^' 

Madison in the Virginia convention: "Who are the 
parties to it? The people — but not the people as com- 
posing one great body; but the people as composmg 
thirteen sovereignties. Were it, as the gentleman as- 
serts, a consolidated government, the assent of a ma- 
jority of the people would be sufficient for its 
establishment. . . . But, sir, no State is bound by it, as 
it is, without its own consent. Should all the States 
adopt it, it will be then a government established by the 
thirteen States of America, not through the intervention 
of the legislatures, but by the people at large. . . . The 
existing system has been derived from the dependent, 
derivative, authority of the legislatures of the States; 
whereas this is derived fi'om the superior power of the 

Corbin in the Virginia convention: "I expected no 
such objection as this. Ought not the people, sir, to 
judge of that government whereby they are to be 
ruled ?"^^ 

Iredell in the North Carolina convention: The Con- 
stitution is not a compact between the rulers and the 
ruled. This principle is inapplicable "to a government 
where the people are avowedly the fountain of all 

Caldwell in the North Carolina convention: "Mr. 
Chairman, if they mean. We the people, — the people at 

"/&. 42. 

"7&. 94- 

"J&. 104. 

^"Elliot, IV, II. A little later, Iredell added: "We, People, 
was not to be applied to the members themselves [of the Phila. 
convention], but was to be the style of the Constitution when 
it should be ratified in their respective States" : *. 23. 


large, — I conceive the expression is improper. Were 
they who framed this Constitution the representatives 
of the legislatures of the different States? In my opin- 
ion, they had no power, from the people at large, to use 
their name, or to act for them. They were not delegated 
for that purpose."^^ 

Maclaine in the North Carolina convention: "The 
reverend gentleman has told us that the expression. We 
the people, is wrong, because the gentlemen who framed 
it were not the representatives of the people. I readily 
grant that they were delegated by States. But they did 
not think that they were the people, but intended it for 
the people at a future day. The sanction of the State 
legislature was in some degree necessary. It was to be 
submitted by the legislatures to the people ; so that when 
it is adapted, it is the act of the people. When it is the 
act of the people, their name is certainly proper. This 
is very obvious and plain to any capacity."^^ 

Spencer in the North Carolina convention: "The 
States do not act in their political capacities, but the 
government is proposed for individuals. The very cap- 
tion of the Constitution shows that this is the case. The 
expression. We the people of the United States, shows 
that this government is intended for individuals."^" 

Luther Martin in his Genuine Information : "It is, in 
its very introduction, declared to be a compact between 
the people of the United States, as individuals ; and it is 
to be ratified by the people at large in their capacity as 
individuals; all which . . . would be quite right and 
proper if there were no State governments, if all the 
people of this continent were in a state of nature, and 
we were forming one national government for them as 
individuals; and is nearly the same as was done in most 
of the States when they formed their governments over 
the people who composed them,"^° 

Hamilton in Federalist 22 : "It has not a little con- 
tributed to the infirmities of the existing federal system, 

'"lb. 15-6. Caldwell opposed adoption. 

"76. 16. 

"76. 153. Spencer opposed adoption. 

""§30: Farrand, Til, 193. The emphasis is ftom the original. 


that it never had a ratification by the people. Resting on 
no better foundation than the consent of the several 
legislatures, it has been exposed to frequent and intricate 
questions concerning the vaHdity of its powers, and has, 
in some instances, given birth to the enormous doctrine 
of a right of legislative repeal. Owing its ratification to 
the law of a State, it has been contended that the same 
authority might repeal the law by which it was ratified. 
However gross a heresy it may be to maintain that a 
party to a compact has a right to revoke that compact, 
the doctrine itself has had respectable advocates. The 
possibility of a question of this nature proves the ne- 
cessity of laying the foundations of our national govern- 
ment deeper than in the mere sanction of delegated 
authority. The fabric of American empire ought to 
rest on the solid basis of THE CONSENT OF THE 
PEOPLE. The streams of national power ought to flow 
immediately from that pure, original fountain of all 
legitimate authority. "^^ 

Madison in Federalist 39: "It appears', on one hand, 
that the Constitution is to be founded on the assent and 
ratification of the people of America, given by deputies 
elected for the special purpose; but, on the other, that 
this assent and ratification is to be given by the people, 
not as individuals composing one entire nation, but as 
composing the distinct and independent States to which 
they respectively belong. It is to be the assent and 
ratification of the several States, derived from the su- 
preme authority in each State, — the authority of the 
people themselves. The act, therefore, establishing the 
Constitution, will not be a national, but a federal act. 
Were the people regarded in this transaction as 
forming one nation, the will of the majority of the 
whole people of the United States would bind the mi- 
nority, in the same manner as the majority in each State 
must bind the minority; and the will of the majority 
must be determined either by a comparison of the in- 
dividual votes, or by considering the will of the ma- 
jority of the States as evidence of the will of a 
"Lodge's edition is used. This and the following .passages 
will be found on pp. I3S, 236, 241-2, 246, 275-6. 


majority of the people of the United States. Neither of 
these rules has been adopted. Each State, in ratifying 
the Constitution, is considered as a sovereign body, in- 
dependent of all others, and only ta be bound by its own 
voluntary act. In this relation, then, the new Constitu- 
tion will, if established, be a federal, and not a national 

Same in Federalist 40: "Let the most scrupulous 
expositors of delegated powers . . . declare, whether it 
was of most importance to the happiness of the people 
of America, that the articles of Confederation should be 
disregarded, and an adequate government be provided, 
and the Union preserved ; or that an adequate govern- 
ment should be omitted, and the articles of Confeder- 
ation preserved. . . " (On the other hand) "let us 
view the ground on which the Convention stood. . . . 
They must have reflected, that in all great changes of 
established governments, forms ought to give way to 
substance ; that a rigid adherence in such cases to the 
former, would render nominal and nugatory the tran- 
scendent and precious right of the people to 'abolish or 
alter their governments as to them shall seem most 
likely to effect their safety and happiness'." 

Same in Federalist 43 : " 'The ratification of the 
conventions of nine States shall be sufficient for the 
establishment of this Constitution between the States, 
ratifying the same.' This article speaks for itself. The 

^/6. p. 236. The advocates of State rights have sometimes 
ventured to quote portions of this passage in support of their 
thesis. A careful examination of the terms used however 
shows that Madison has it in mind to emphasize two points : 
I — that the existing States are recognized to the extent that 
the Constitution, by its own specific provision, is to go into 
effect only in those whose people ratify it; 2 — that in the 
States ratifying it, it will be the act of the people, acting as 
individuals. Also, the State rights advocates do not attempt to 
reconcile their interpretation of Fed. No. 39 with the further 
language used by Madison in Fed. Nos. 40, 43, and 45, quoted 
infya. See also the passage quoted infra, from his Report of 


express authority of the people alone could give due 
validity to the Constitution. To have required the 
unanimous ratification of the thirteen States, would have 
subjected the essential interests of the whole to the 
caprice or corruption of a single member. It would 
have marked a want of foresight in the Convention, 
which our own experience would have rendered inex- 
cusable. Two questions of a very delicate nature present 
themselves on this occasion: i. On what principle the 
Confederation, which stands in the solemn form of a 
compact among the States, can be superseded without 
the unanimous consent of the parties to it ? 2. What re- 
lation is to subsist between the nine or more States rati- 
fying the Constitution, and the remaining few who do 
not become parties to it? The first question is answered 
at once by recurring to the absolute necessity of the 
case ; to the great principle of self-preservation ; to the 
transcendent law of nature and of nature's God, which 
declares that the safety and happiness of society are 
the objects at which all political institutions aim, and 
to which all such institutions must be sacrificed." 

II — The evidence drawn from the proceedings in 
Congress in 1789, on the proposed amendments, falls 
into four groups: i — Speeches made on Sherman's 
motion, which was eventually adopted, not to incorpo- 
rate the proposed amendments in the Constitution, as 
had been intended by the committee that formulated 
them, but to append them to it as separate and dis- 
tinct articles; 2 — Speeches made on a proposition, 
which was eventually lost, to insert in the Preamble 
of the Constitution a formal declaration of the prin- 
ciple that "governments rest on the consent of the 
governed"; 3 — Speeches made on a proposed amend- 
ment, which was also lost, asserting the right of the 
people to instruct their representatives in Congress; 
4 — The Tenth Amendment. In no case, of course, are 


the speeches quoted below given for their discussion 
of the topics immediately in debate, but for the light 
they shed upon the historicity of the, today, current 
antithesis between "People of the United States" and 
"People of the States." 

I — From the debate on Sherman's motion: 

"Mr. Sherman : If I had looked upon this question as 
mere matter of form, I should not have brought it for- 
ward or troubled the committee with such a lengthy dis- 
cussion. But, sir, I contend that amendments made in 
the way proposed by the committee are void. ... I 
would desire gentlemen to consider the authorities upon 
which the two constitutions are to stand. The original 
was established by the people at large, by conventions 
chosen by them for the express purpose. The preamble 
to the Constitution declares the act : but will it be a truth 
in ratifying the next constitution, which is to be done 
perhaps by the State Legislatures, and not conventions 
chosen for the purpose? Will gentlemen say it is "We 
the people" in this case? Certainly they cannot; for, by 
the present Constitution, we, nor all the legislatures in 
the Union together, do not possess the power of re- 
pealing it. All that is granted us by the Fifth Article is, 
that whenever we shall think it necessary, we may pro- 
pose amendments to the Constitution ; not' that we may 
propose to repeal the old, and substitute a new one."-^ 

"Mr. Gerry: The honorable gentleman from Con- 
necticut, if I understand him right, says that the words 
'We the people' cannot be retained, if Congress should 
propose amendments, and they be ratified by the State 
legislatures. Now, if this is a fact, we ought most un- 
doubtedly to adopt his motion; because if we do not, we 
cannot obtain any amendment whatever. But upon what 
ground does the gentleman's position stand? The Con- 
stitution of the United States was proposed by a Conven- 
tion met at Philadelphia; but, with all its importance, it 

^Annals of Cong., I, col. 742. For the entire proceedings on 
the motion, see ib., cols. 734-44, 795. 


did not possess as high authority as the President, Sen- 
ate, and House of Representatives of the Union. For 
that Convention was not convened in consequence of any 
express will of the people, but an implied one, through 
their members in the State legislatures. The Consti- 
tution derived no authority from the first Convention; 
it was concurred in by conventions of the people, and 
that concurrence armed it with power and invested it 
with dignity. Now the Congress of the United States 
are expressly authorized by the sovereign and uncon- 
trollable voice of the people, to propose amendments 
whenever two-thirds of both Houses shall think fit. 
Now, if this is the fact, the propositions of amendment 
will be found to originate with a higher authority than 
the original system. The conventions of the States, re- 
spectively, have agreed for the people, that the State 
legislatures shall be authorized to decide upon these 
amendments in the manner of a convention. If these 
acts of the State legislatures are not good, because they 
are not specifically instructed by their constituents, 
neither were the acts calling the first and subsequent 

2 — From the debate on the proposed amendment to 
the Preamble : 

"Mr. Tucker replied, that the words 'We the people do 
ordain and establish this constitution for the United 
States of America,' were a declaration of their action ; 
this being performed. Congress have nothing to do with 
it. Bttt if it was necessary to retain the principle, it 
might come in at some other place."-' 

"Mr. Page thought the Preamble no part of the Con- 
stitution ; but if it was, it stood in no need of amend- 
ment; the words 'We the people,' had the neatness and 
simplicity, while its expression was the most forcible of 
any he had ever seen prefixed to any constitution. He 
did not doubt the truth of the proposition brought for- 

""/&. cols. 743-4- 
■'lb. col. 74S- 


ward by the committee, but he doubted its necessity in 
this place."^'* 

"Mr. Madison: If it be a truth, and so self-evident 
that it cannot be denied ; if it be recognised, as is the 
fact in many of the State constitutions ; and if it be 
desired by three important States, to be added to this, 
I think they must collectively offer a strong inducement 
to the mind desirous of promoting harmony, to acquiesce 
with the report; at least, some strong arguments should 
be brought forward to show the reason why it is 

"Mr. Sherman thought they ought not to come in in 
this place. The People of the United States have given 
their reasons for doing a certain act. Here we propose 
to come in and give them a right to do what they did on 
motives which appeared to them sufficient to warrant 
their determination; to let them know that they had a 
right to exercise a natural and inherent privilege, which 
they have asserted in a solemn ordination and establish- 
ment of the Constitution. Now, if this right is indefeas- 
ible, and the people have recognised it in practice, the 
truth is better asserted than it can be by any words what- 
ever. The words "We the people" in the original Con- 
stitution, are as copious and expressive as possible ; any 
addition will only drag out the sentence without illumi- 
nating it ; for these reasons, it may be hoped the com- 
mittee will reject the proposed amendment."^" 

3 — From the debate on the proposed amendment 
asserting the right of instruction : 

"Mr. Gerry : . . . The friends and patrons of this 
Constitution have always declared that the sovereignty 
resides in the people, and that they do not part with it 
on any occasion; to say the sovereignty vests in the 
people, and that they have not a right to instruct and 
control their representatives, is absurd to the last 
degree. . . ."^^ 

="/&. col. 746. 

"/6. col. 765. The entire debate on the subject runs from 
col. 761 to 776. The motion was rejected by a vote of 41 to 10. 


"Mr. Madison: . . . The honorable gentleman from 
Massachusetts asks if the soivereignty is not with the 
people at large. Does he infer that the people can, in 
detached bodies, contravene an act established by the 
whole people ? My idea of the sovereignty of the people 
is, that the people can change the Constitution if they 
please ; but while the Constitution exists, they must con- 
form themselves to its dictates. But I do not believe 
that the inhabitants of any district can speak the voice 
of the people; so far from it, their ideas may contradict 
the sense of the whole people; hence the consequence 
that instructions are binding on the representative is of 
a doubtful, if not of a dangerous nature. I do not con- 
ceive, therefore, that it is necessary to agree to the prop- 
osition now made; so far as any real good is to arise 
from it, so far that real good is provided for; so far as 
it is of a doubtful nature, so far it obliges us to run the 
risk of losing the whole system. . . ."-* 

"Mr. Livermore was not very anxious whether the 
words were inserted or not, but he had a great deal of 
doubt on the meaning of this whole amendment; it pro- 
vides that the people may meet and consult for the com- 
mon good. Does this mean a part of the people in a 
township or district, or does it mean the representatives 
in the State legislatures? If it means the latter, there 
is no occasion for a provision that the legislature may 
instruct the members of this body. . . ."^' 

"Mr. Sedgwick opposed the idea of the gentleman 
from New Hampshire, that the State legislature had 
the power of instructing the members of this House; he 
looked upon it as a subordination of the rights of the 
people to admit such an authority. We stand not here, 
said he, the representatives of the State legislatures, as 
under the former Congress, but as the representatives 
of the great body of the people. The sovereignty, the 
independence, and the rights of the States are intended 
to be guarded by the Senate; if we are to be viewed in 
any other light, the greatest security the people have 
for their rights and privileges is destroyed. . . ." 

"lb. col. 7^- 
"lb. col. 770. 


[Mr. Livermore said that the gentleman misunder- 
stood him, that what he had said respected only the in- 
fluence that legislative instructions would have on his 
private judgment.]^" 

"Mr. Page: ... It was strictly compatible with the 
spirit and the nature of the Govermnent; all power 
vests in the people of the United States ; it is, therefore, 
a Government of the people, a democracy. "'"^ 

4 — The Tenth Amendment : "The powers not dele- 
gated to the United States by the Constitution or pro- 
hibited by it to the States are reserved to the States 
respectively, or to the people."^^ 

This evidence, drawn as it is from eveiy variety of 
political opinion contemporary with it, sustains, it is 
submitted, the following deductions : That in 1 787 
the terms "People of the States" and "People of the 
United States" were not antagonistic terms; that the 
terms opposed by the men of that day were States 
and People, or more generally Governments and 
People ; that the political science of the day afforded no 
intermediate term; that governments were universally 
regarded as properly the creations of the people gov- 
erned by them; that the States were regarded as re- 
spectively the creations of the people politically 
organized under them; that the term People meant 
any designated aggregation of individuals endowed 
with the rights of men under the social compact and 
especially the right to determine their forms of gov- 
ernment; that the Constitution was universally recog- 

^"/&. cols. 771-2. 
°'/&. col. 772. 

"^Thd antithesis is still between States and people: he. cit. 
col. 797- 


nized as proposing a government over individuals; 
that though the existing organization of the American 
people into States was recognized to the extent of a 
specific provision in the Constitution that it was to go 
into efifect only "between the States" ratifying it, as 
to those States it was to rest upon an act of popular 
ratification; that the establishment of the Constitution 
was regarded contemporaneously as representing a 
fresh manifestation of the inexhaustible, inalienable 
right of the people to govern themselves. ^^ 

'"Further evidence confirming that given in the text is avail- 
able from the comparison so frequently made of the House of 
Representatives and the Senate : "The House of Representatives 
will derive its powers from the people of America. . . . The 
Senate, on the other hand, will derive its powers from the 
States, as political and coequal societies'' : Fed, No. 39, p. 237 
(Lodge Ed.). I do not, of course, deny that the Constitution 
is frequently spoken of as being "ratified by the States," for in 
colloquial use the term "States" had several meanings: see pas- 
sage quoted infra from Madison's Report of 1799. See also 
King's language in the Convention, June 19 ; and again, John- 
son's June 29 : Gentlemen were using the term "States" in two 
senses, "those on one side considering the States as districts of 
people composing one political society ; those on the other, con- 
sidering them as so many societies" : Farrand, I, 461. What is 
insisted upon in the text is, first, that neither the term "of 
States" nor the term "of United States" added anything in 
1787 to the intrinsic force of the term "People"; and secondly, 
that 'when used in contradistinction to the term "People," the 
term "States" signified simply certain governmental creations of 
the People. The views urged in the text are also supported by 
the language of all the judges in Chisholm v. Ga. 2 Dall. 419 
(1793) ; by J. Story's language in Martin v. Hunter's Lessee, 
I Wheat. 304, 324-S (1816) ; and by C. J. Marshall's language in 
McCulloch V. Md. 4 Wheat. 316, 402-s (1819). Note particu- 
larly the following passage from Marshall's opinion: "It has 
been said that the people had already surrendered their powers 


And from these conclusions two others necessarily 
follow: First, that it is a matter of entire indiffer- 
ence, legally speaking, whether the United States was a 
nation before the Constitution was adopted or not, 
since the Constitution obtains its entire force and effi- 
cacy, not from the fact that it was ratified by a pre- 
existent political community or communities — for it 
was not — but from the fact that it was established by 
the people to be governed by it.^^" Secondly, that the 
States have no outstanding rights against the Constitu- 
tion, that their rights with respect to the Constitution 
are defined in it, that whether they are in any particu- 
lar superior to or subordinate to the National Govern- 
ment depends entirely on the terms of the Constitution 
itself until this is overthrown. Secession therefore and 
nullification as alleged constitutional rights go a-glim- 
mering. The only fundamental outstanding right supe- 
rior to the Constitution is, in other words, that right of 
the people to the exercise of which it owes its existence, 
namely, the right of revolution. Confronted with the 
question in the Federalist as to what would be the 

to the State sovereignties and had nothing more to give. But 
surely, the question whether they may resume and modify the 
powers granted to government does not remain to be settled 
in this country. Much more might the legitimacy of the Gen- 
eral Government be doubted had it been created by the States. 
The powers delegated to the State sovereignties were to be 
exercised by themselves, not by a distinct and independent sov- 
ereignty created by themselves." 

^'^ Nor is this to say that the Constitution made the U. S. a 
nation. All the factors of nationality were already present to 
the American People save organization under a real govern- 
ment. That, of course, the Constitution supplied for the first 

"WE, THE PEOPLE'\ \ ' "" '^ /a, ip'i 

> Mk/ , '-'^'^''/' 
consequence if Congress should atteiTf]5t- -to'tlsurp 

power, Madison answered : "The same ... as if 
the State legislatures should violate their respective 
constitutional authorities," though he further pointed 
out, that as a matter of fact, popular resistance to 
encroachments upon liberty by the National Govern- 
ment would be easier than resistance to like encroach- 
ments by the State governments, since the machinery 
of the latter, indi'Spensable as it is at any number of 
points to the working of the former, would often- 
times be in the hands of the resisters.^* And not less 
explicit is the answer returned to the same question 
by the Virginia ratifying convention. That body 
adopted the following declaration: "We, the dele- 
gates of the people of Virginia, ... do in the name 
and in behalf of the people of Virginia declare and 
make known that the powers granted under the Con- 
stitution being derived from the people of the United 
States, may be resumed by them whensoever the same 
shall be perverted to their injui-y or oppression."*" 
To cite this declaration as an assertion of the right of 
secession or indeed of any kind of State intervention 
is simply absurd. It is a plain statement of the doc- 
trine of the right of revolution, which is a right not 
of governments but of the governed.*"" 

"No. 44, p. 283 (Lodge). See also Nos. 45 and 46; and Hamil- 
ton in No. 28. 

^Elliot, in, 656. 

°'"' Said Robert E. Lee, in a letter to his brother, written in 
Jan. 1861 : "Secession is nothing but revolution. ... It is idle 
to talk of isecession. Anarchy would have been established, and 
not a government, by Washington, Hamilton, Jefferson, Madi- 
son, and other patriots of the Revolution": Bradford, Lee the 


The tinderlying fallacy of Calhounism is, then, 
clear once more. It consists in an attempt to appro- 
priate to political entities, called States, rights which 
properly belong only to populations. As is well 
known, this fallacy made its first appearance in the 
Virginia and Kentucky Resolutions of 1798,^" but it 
is further illumined by some instructive passages in 
Madison's famous Report to the Virginia legislature 
the year following in defence of the Resolutions. 

American, p. 35. It is a tenable thesis, I believe, that Cal- 
hounism has been more influential with Southern apologists for 
secession, 'since the war, than it ever was with the promoters of 
secession before the war. 

"" It is to be noted, however, that even the Va. and Ky. Reso- 
lutions confirm the thesis set forth in the text to this extent, 
that the State legislature is still regarded as the highest organ 
of the State as a political entity. The intermediate term, in 
other words, between State, in the sense of government, and 
the people of the State in their revolutionary capacity, had not 
yet been found. Madison indeed saw the difiiculty that this fact 
opposed to the doctrine of the resolutions. Thus, on Dec. 29, 
1798, he wrote Jefferson thus : "Have you ever considered thor- 
oughly the distinction between the power of the State and that 
of the legislature on questions relating to the federal pact? On 
the supposition that the former is clearly the ultimate judge of 
infractions, it does not follow that the latter is the legitimate 
organ ; especially as the convention was the organ by which the 
compact was made": Writings (Hunt Ed.) VI, 328 fn. The 
hint thus given was followed by Calhoun : see infra. Madison's 
discussion of this question throws a curious light on his later 
attempts to escape the log'ical consequences of the Resolutions : 
See letter in Writings, IX, 495 ffg. This was written in Jan. 
1833, after the Nullification menace had become serious. In 
his letter to Cabell of Aug. 16, 1829, Madi'son virtually admits 
that the difference between South Carolina's doctrine and that 
of Virginia in 1798 was merely one of degree: loc cit., IX, 


Reiterating the doctrine that the Constitution is a 
compact of sovereign States, and for that reason ulti- 
mately subject to the construction given it by the 
States, Madison writes: 

"It is indeed true that the term 'States' is sometimes 
used in a vague sense, and sometimes in different 
senses, according to the subject to which it is applied. 
Thus it sometimes means the separate sections of terri- 
tory occupied by the political societies within each; 
sometimes the particular governments established by those 
societies ; sometimes those societies as organized into 
those particular governments; and lastly, it means the 
people composing those political societies in their high- 
est political capacity. ... In the present instance, what- 
ever different construction of the term 'States' in the 
resolution may have been entertained, all will at least 
concur in that last mentioned; because in that sense the 
Constitution was submitted to the 'States' ; in that sense 
the 'States' ratified it; and in that sense of the term 
'States' they are consequently parties to the compact 
from which the powers of the Federal Government re- 
sult. . . . The Constitution of the United States was 
formed by the sanction of the States, given by each in 
its sovereign capacity. . . . The States then, being the 
parties to the constitutional compact, and in thcii- sover- 
eign capacity, it follows of necessity that there can be 
no tribunal above their authority to decide."-'^ 

In other words, what is at the outset characterized as 
the highest political capacity of the people of the 
States is finally transmuted by verbal legerdemain into 
the highest political capacity of the States themselves ! 
The argument reduces itself to a mere pun on the 
word "States," which is dexterously concealed by an 
elaborate pretence at definition. Later in the report 
occurs this sentiment: "The authority of constitu- 

" Writings, VI, 348-9- 


tions over governments and of the sovereignty of the 
people over constitutions" are truths that cannot be 
enough emphasized.^® Very good. But if it was the 
purport of the Resolutions merely to assert the ulti- 
mate control of the people of the United States over 
the Constitution, why all the jargon about "a compact 
of sovereign States" ? But in the end, as I pointed 
out in the previous article, Madison abandoned his 
entire case for State "interposition." 

"A declaration," he writes, "that proceedings of the 
Federal Government are not warranted by the Constitu- 
tion is a novelty neither among the citizens nor among 
the legislatures of the States, . . . nor can the declara- 
tions of either, whether affirming or denying the con- 
stitutionality of measures of the Federal Government, 
be deemed, in any point of view an assumption of the 
office of judge. The declarations in such cases are ex- 
pressions of opinion, unaccompanied with any other ef- 
fect than what they may produce on opinion by exciting 

Rather a lame conclusion to so much fulminationl 
The boasted right of the sovereign State to insert it- 
self between its citizens and the National Government 
on such occasions as it deemed the latter to be ex- 
ceeding its powers dangerously comes down in the 
last analysis to a mere right on the part of its 
legislature to vote resolutions expressive of opinion, 
resolutions which are admitted to be no more authori- 
tative than any ebullition of opinion on the part of 
private citizens. 

On the other hand, it must not be concluded that 
Calhounism is absolutely without justification from 

="/&. 352. 
"lb. 402. 


the point of view of the history of American political 
theory. For one thing, even in 1787, there was some 
difficulty in admitting in the same breath the idea of 
the Constitution as law and the idea of it as a direct 
act of the people. Government was representative, 
and until they were unseated, the people's representa- 
tives alone had the right to govern, and, therefore, to 
enact laws.*" To use the words of Ellsworth on a 
closely related matter, "a new set of ideas was creeping 
in." They had not, however, as yet, established them- 
selves so generally but that at this point the Conven- 
tion of 1787 must be held to have broken with the 
dominant tradition. But again, while by Calhoun's 
time, the idea of a constitution as law was well enough 
established, yet the agency by which constitutions are 
nowadays drawn up, namely, constitutional conven- 
tions, had become such usual phenomena as to have 
been substantially assimilated to the machinery of 
organised government, so that one looking back to the 
State conventions that had in 1787 ratified the Con- 
stitution found it natural to regard them as organs of 
existing political societies, rather than as directly rep- 
resentative of the individuals back of those societies. 
But lastly, Calhounism may be regarded as an effort 
to restore the somewhat tarnished reputation of the 
Right of Revolution. A very vital right this was in 
1787. Nor was it a merely moral right, for the hne 
between morals and law was as yet but faintly drawn, 
as evidence of which is the fact that judges them- 
selves claimed power to pass on the validity of laws 

*° See the quotation from Luther Martin's Genuine informa- 
tion immediately below. 


under principles of the social compact.*^ By 1830 
however, with the extension of the notion that it was 
the sovereignty of the people, and nothing else, that 
gave constitutions their legal character, this line had 
become distinctly delineated and the right of revolu- 
tion confined to the field of moral rights. Well, then, 
some right as good as the right of revolution had been 
must be provided — hence the theory of the right of 
secession as a constitutional right. 

But the general subject under discussion has yet 
another aspect that deserves brief mention. It is the 
habit of a certain school of writers nowadays to ring 
the changes on the assertion that the Convention of 
1787 was "undemocratic," and there is undoubtedly 
some poorly defined truth to the charge. Nonetheless, 
this "undemocratic" body made the most audacious 
and altogether unqualified appeal to the notion of 
popular sovereignty and majority rule that had ever 
yet been made, even in America. For while some of 
the State constitutions had also been referred for 
popular ratification by the bodies which formulated 
them, even these were not at their inception regarded 
as law, while the national Constitution was. 

The fact of the matter is, that so far as prerogative 
and democracy are antagonistic ideas, the opponents 
of democracy in 1787 were also the opponents of the 
Constitution. In this connection let the reader turn to 
Luther Martin's attack in his Genuine Information*- 
upon the supporters of the Constitution for their re- 

" See the language of Justice Chase in Colder v. Bull, 3 Dall. 
386 (1798). 
"§§ 104-6, as printed in Volume III of Farrand's Records. 


jection of the Articles of Confederation and for the 
inroads they proposed upon the existing State consti- 
tutions, and then to the premises upon which this at- 
tack was avowedly based : "Nor do these positions," 
Martin proceeds, 

"in the least interfere with the principle that all power 
originates from the people, because when once the people 
have exercised their power in establishing and forming 
themselves into a State government, it never devolves 
back to them, nor have they a right to resume or again 
to exercise that power, until such events take place as 
will amount to a dissolution of their State governments." 
The reference of the Constitution to the people, there- 
fore, had "a tendency to set the State governments and 
their subjects at variance with each other, to lessen the 
obligations of govermnent, to weaken the bonds of so- 
ciety, to introduce anarchy and confusion and to light 
the torch of discord and civil war throughout this 

This standpat argument was met by Madison in 
Federalist 45 in the following words : 

"Was then," he there inquires, "the American Revolu- 
tion effected, was the American Confederacy formed, 
was the precious blood of thousands spilt, and the hard- 
earned substance of millions lavished, not that the people 
of America should enjoy peace, liberty, and safety, but 
that the government of the individual States, that par- 
ticular municipal establishments, might enjoy a certain 
extent of power, and be arrayed with certain dignities 
and attributes of sovereignty? We have heard of the 
impious doctrine in the Old World, that the people were 
made for kings, not kings for the people. Is the same 
doctrine to be revived in the New, in another shape — 
that the solid happiness of the people is to be sacrificed 
to the views of political institutions of a different form? 
It is too early for politicians to presume on our for- 

"^ lb. § 106, Farrand, III, 230. The emphasis is from the 


getting that the public good, the real welfare of the 
great body of the people, is the supreme object to be 
pursued; and that no form of government whatever has 
any other value than as it may be fitted for the attain- 
ment of this object. Were the plan of the Convention 
adverse to the public happiness, my voice would be, Re- 
ject the plan. Were the Union itself inconsistent with 
the public happiness, it would be, Abolish the Union. 
In like manner, as far as the sovereignty of the States 
cannot be reconciled to the happiness of the people, the 
voice of every good citizen must be, Let the former be 
sacrificed to the latter." 

In short, government rests upon the consent of the 
governed and may be remodelled by them at will to 
suit their utility, all previous govermxifints, states, 
confederations, constitutions, to the contrary notwith- 
standing. What more could one demand of the spirit 
of liberalism in an age when the "social problem" had 
not yet emerged?** 

" The question at issue between Martin and Madison was 
really as to the proper scope of the Right of Revolution. Mar- 
tin's view was that this right (not power) was available only 
against oppression. Madison and the supporters of the Consti- 
tution, on the other hand, took the position that it was available 
whenever its exercise would prove beneficial. This view is un- 
doubtedly sanctioned by the Declaration of Independence, a 
somewhat radical interpretation of the teachings of which in 
this reference is that given in a speech by Benj. Hichborn of 
Boston early in 1777 : Civil liberty, said he, was "not a 'govern- 
ment by laws,' made agreeable to charters, bills of rights, or 
compacts, but a power existing in the people at large, at any 
time, for any cause, or for no cause but their own sovereign 
pleasure, to alter or annihilate both the mode and essence of 
any former government and adopt a new one in its stead" : 
Niles, Principles and Acts, 146-7. Martin's view, however, was 
the older one. Developing it on the floor of the Convention he 
had cited in its support Locke, Vattel and others : see Madi- 
son's Notes for June 27. Jefferson's idea that there ought to be 
actual blood-letting about every nineteen years is familiar. 



For several years Mr. Hannis Taylor has been en- 
deavoring to persuade the American public that the 
Constitution, instead of being the work of the Conven- 
tion of 1787, acting under the guidance of men like 
Madison, Hamilton, Pinckney, Patterson, Ellsworth, 
and others of similar caliber, was really the invention 
of a single individual, Pelatiah Webster by name, 
whose fame, till Mr. Taylor's resurrection of it in The 
North American Review for August, 1907, had 
dropped quite out of historical notice. Since this first 
publication of his discovery, — I think it was the first, — • 
Mr. Taylor has returned to the attack time and time 
again, now in a memorial to Congress urging some 
sort of national recognition of Webster's services, 
now in a volume on Jurisprudence, again in an impos- 
ing work on The Origin and Growth of the American 
Constitution, and more recently, and compendiously, in 
the New York Evening Post of January 10, 1912, 
where he attempts to answer Mr. Gaillard Hunt's very 
pointed criticism in an earlier issue (December 30, 
191 1 ) of the same journal, of his method of handling 
historical evidence in one or two instances. Certainly 
if asseveration and reiteration could establish the truth 
of history, Mr. Taylor would by this time have put 
his thesis beyond all question. But has he in fact suc- 
ceeded in doing so? This is the subject of our inquiry. 

* The greater portion of this article appeared in the Michigan 
Law Review for June, 1912. 



First, a word as to the documents involved. For 
the most part, I shall quote from Mr. Taylor's latest 
statement of his case, in the Evening Post article. 
But this case in turn is based upon a document. For, 
as Mr. Taylor reminds us, in the language of M. 
Langlois : "History is studied from documents. . . . 
There is no substitute for documents; no documents, . 
no history." Accordingly, between pages 23 and 49 
of Mr. Taylor's memorial to Congress, which is avail- 
able to everybody as Senate Document No. 461 of the 
60th Congress, ist session, will be found, to quote its 
editor, "the epoch-making document of February 16, 
1783, in which is embodied the first draft of the exist- 
ing Constitution of the United States," the document 
which entitles its author, Pelatiah Webster, to be re- 
garded as "the architect of our Federal Constitution." 
Further along Mr. Taylor adds : "Strange indeed it 
is that the most important document connected with 
our constitutional history should now be presented to 
the jurists and statesmen of the United States as if it 
were a papyrus from Egypt or Herculaneum." 

Sketched in outline, Mr. Taylor's case for Webster 
is as follows : The United States is a federal govern- 
ment, but a federal government of a unique sort, in 
that it operates directly upon the individuals subject to 
it instead of through the governmental machinery of its 
component States. Originally the United States, as 
organized under the Articles of Confederation, was 
itself of the usual type of federal government, being 
dependent even for its revenue upon State action. 
This system, however, soon proved inadec[uate, and 


particularly on its financial side. Now as it chanced, 
Pelatiah Webster of Philadelphia was a student of 
finance. Approaching the subject of the deficiencies 
of the Confederation from the angle afforded by his 
favorite studies, Webster was able to make an almost 
unparalleled contribution to the science of government. 
The system of State requisitions had failed. The 
central government must therefore have a revenue of 
its own, to be levied by its own legislature and to be 
collected by its own agents. For financial purposes at 
least, then, the central government must act directly 
on the people, and not indirectly through the States. 
Thus at one leap was the tremendous barrier that de- 
marks the American system from all other federal 
systems surmounted. For this great feat achieved, all 
the rest was easy enough for the mind that had 
achieved it. Not only was Webster the first to sug- 
gest a federal revenue, but he was the first to outline 
the entire system embodied in the Constitution of lySf. 

But now is it true that Webster was the first to pro- 
pose that the Federal Govei'nment should have "the 
independent power to tax," that before him "no one 
had dreamed of a federal state with the independent 
power of taxation," that this proposition "made all 
possible," involving "the creating of a distinct and 
self-sustaining federal government such as had never 
existed" ? 

Webster's proposition to invest "the supreme 
authority" of the Union with "power of taxation," 
meaning by that the power to levy import duties, 
which he urged should be particularly heavy upon 


articles "consumed by the rich or prodigal part of the 
community," occurs on page 26 of Senate Document 
Number 461. On that very page Webster himself 
refers to the recent action of Rhode Island in rejecting 
an amendment to the Articles of Confederation by 
which Congress was to be given the power to levy a 
5 per cent import duty! This amendment was first 
proposed in February, 1781, and so antedates Web- 
ster's pamphlet an even two years. Even earlier was 
Hamilton's famous letter of September 3, 1780, to 
James Duane urging a "solid coercive union," a power- 
ful executive consisting of few heads, a federal reve- 
nue, a tax in kind, and a national bank. Mr. Taylor is 
quite aware of this letter of Hamilton's but sets it down 
as of "no importance" on account of its alleged private 
character. "It was not a pubhc act, not even a public 
declaration," he says. But is this a valid line of argu- 
ment? The letter, whether it be regarded as public 
or private, still comprises an index to its author's gen- 
eral interests and conversation, as well as of the group 
in which he moved. This is proved by the very sen- 
tence with which it opens : "Agreeably to your re- 
quest and my promise, I sit down to give you my 
ideas of the defects of the present system and the 
changes necessary to save us from ruin." But the fact 
is that the letter was, in a very true sense of the term, 
a public one, though it was not at the time published 
through the press. Its author was the private secre- 
tary of the Commander-in-chief of the Continental 
Army. Its recipient was a member of Congress. The 
topic it dealt with was one of public interest. Its 


dimensions were those of a pamphlet. Finally, one of 
the specific proposals contained in it resulted in the 
plan from the congressional committee of which 
Duane was a member, establishing a Department of 
Foreign Affairs with a Secretary. This occurred in 
January 1781, many months before Webster had con- 
ceived his pamphlet.^ 

But indeed, not even Hamilton is entitled to the 
credit of first suggesting, the idea of a federal sys- 
tem the central authority of which should be vested 
with an independent power of taxation. More than a 
quarter of a century before the letter to Duane was 
written, three years before its author had yet seen the 
light of day, Benjamin Franklin had proposed a fed- 
eral government for the British Colonies of North 
America, "for their mutual defense and security." 
This was the so-called "Albany Plan of Union" of 
1754. The governing body of the Union was to be a 
"Grand Council" composed of forty-eight members, 
apportioned among the colonies in a way to recog- 
nize, to some extent, their relative population and 
importance. But the central feature of the scheme 
was the grant of power to the Grand Council. They 
were to regulate all trade with the Indians, to make 
new settlements, to govern these till the crown should 

^For the Duane letter, see Writings of Alexander Hamilton 
(Lodge, Ed.) I, 213 ffg. It is worth noting, in view of Mr. 
Taylor's insistence on the importance of the printed word that 
Hamilton did in fact publish a series of papers in one of which, 
bearing date of Aug. 30, 1787, he repeated his recommendation 
of a tax to be "granted to the Federal Government in per- 
petuity, and, if Congress think proper, to be levied by its own 
collectors": 25 Harv. Law Rev. 748. 


"form them into particular governments," to "raise 
and pay soldiers," "build forts," "equip vessels of 
force to guard the coast and protect the trade on the 
ocean, lakes, or great rivers," and for these purposes, to 

"have the power to make laws and lay and levy such 
general duties, imports, or taxes, as to them shall appear 
most equal and just, considering the ability and other 
circumstances of the inhabitants in the several colonies, 
and such as may be collected with the least inconvenience 
to the people, rather discouraging luxury, than loading 
industry with unnecessary burdens." 

It is true that the Plan does not state specifically 
whether the collectors of the federal revenue were 
to be appointed by the Grand Council or the colo- 
nial governments, but at least the intervention of 
the colonial legislatures in the levying of federal taxes, 
which was the major cause of the failure of the Arti- 
cles of Confederation, was avoided.^" 

But not only does the Albany Plan, to this extent 
at least, anticipate both Hamilton and Webster in their 
suggestion of a federal government with an indepen- 
dent revenue, but it also suggests the question whether 
Mr. Taylor has not exaggerated somewhat the diffi- 
culty in the way, in the year 1783, of conceiving of a 
federal government acting upon individuals. In this 
connection the testimony of Madison in the Federalist 
is most instructive and it is, moreover, testimony which 
must be very persuasive with Mr. Taylor. Thus writ- 
ing in Federalist 40, Madison compares the scheme 

" For the Albany Plan, see Wm. MacDonald, Select Charters, 
253 ffg. See also Mrs. Lois K. Matthews' interesting study in 
The Am. PoIit'I Sc. Rev., VIII, 393 ffg. 


proposed by the new Constitution with that organized 
by the Articles of Confederation thus : 

"In some instances, as has been shown, the powers of 
the new government will act on the States in their col- 
lective characters. In some instances, also, those of the 
existing government act immediately on individuals. In 
cases of capture, of piracy, of the post-office, of coins, 
weights, and measures, of trade with the Indians, of 
claims under grants of land by different States, and, 
above all, in the case of trials by court-martial in the 
army and navy, by which death may be inflicted without 
the intervention of a jury, or even of a civil magistrate; — 
in all these cases, the powers of the Confederation oper- 
ate immediately on the persons and interests of 
individual citizens. . . . The truth is, that the great 
principles of the Constitution proposed by the Conven- 
tion may be considered less as absolutely new, than as 
the expansion of principles which are found in the 
Articles of Confederation." 

Yet Madison himself admits in the end that "the 
new system" had "the aspect of an entire transforma- 
tion of the old," so that the question of originality is 
still before us, even though in tones somewhat sub- 
dued. Also, it must be conceded that, while Webster 
was plainly no pioneer in urging an import duty for 
the government of the Confederation, he may still 
have been the originator of other not less important 
features of the Constitution of 1787. In other words, 
it is possible that, while Mr. Taylor is mistaken as to 
the exact road by which Webster approached the great 
discoveries in government attributed to him, he may 
still be right in crediting him with those discoveries. 
We thus return to Mr. Taylor's claims for his hero, 
with a view to comparing them with the hero's actual 


Mr. Taylor's second claim for Webster is, then, that 
he first proposed the extension to the Federal Govern- 
ment of the principle of checks and balances and the 
separation of powers. His language is as follows : 
"No one had dreamed of a federal legislature di- 
vided into two chambers; no one had dreamed of a 
federal state divided into three departments; execu- 
tive, legislative and judicial." 

The answer to this claim is twofold. In the first 
place, what Mr. Taylor asserts "no one had dreamed 
of," had been apparently a matter of discussion and de- 
liberation, and that at the very foundation of the Union. 
Ultimately however, John Adams informs us, the prin- 
ciple of the separation of powers was not extended 
to "the United States in their federal capacity," be- 
cause "the people of America and their delegates in 
Congress were of opinion that a single assembly was 
in every way adequate to the management of all their 
federal concerns"; and he adds that this was a rea- 
sonable decision, "because Congress is not a legislative 
assembly . . . but only a diplomatic assembly."- But 
now, it is worth noting, as bearing on the whole ques- 
tion of Webster's merits as a political thinker, that, 
while he did indeed propose to divide Congress into 
two houses,^ it never occurred to him to touch the real 
source of mischief, namely Congress's appointment by 
and responsibility to the States. In other words. Con- 
gress is still to remain a diplomatic assembly in which 
the States shall be represented, precisely as under the 
Articles of Confederation, by delegates "appointed by 

'■ Life and Works IV, 579. See also ib. 208. 

^ Senate Document No. 461, 60th Congress, p. 33. 


the States in any manner they please" and subject to 
recall by the States "as often as they please."^ 

But in the second place, aside from this anomalous 
proposition to divide a diplomatic body into two cham- 
bers, which, in the case of their being unable to agree 
in the face of a crisis, were to bestow all their powers 
upon a dictator after the Roman model,^ Webster had 
not the faintest idea of ^.pplying the principle of 
checks and balances to the Federal Government. True, 
like Hamilton before him, he would have a collegiate 
executive, a "Council of State," but this council was to 
be appointed, certainly in part, probably in entirety, by 
Congress,^ to which moreover "all and singular of 
them" were to be "ever accountable." As to the part 
that this council was to have in legislation, Webster 
writes thus : "/ do not mean to give these great min- 
isters of State a negative on Congress, but I mean to 
oblige Congress to receive their advices before they 
pass their bills, and that every act shall be void that 
is not passed with these forms. "'^ In view of this 
very specific language how remarkable that Mr. Taylor 
should write thus : "Under Webster's plan, now in 
force, federal legislation is enacted by three bodies — 
the executive, the House of Representatives and the 
Senate. The President of the United States is a part 
of the law-making power. Tlmt is what Webster said, 
no more, no less" ! 

But Mr. Taylor's third claim in his hero's behalf is 

*/&. p. 27. 
"76. p. 42. 
°Ih. p. 43. 
'lb. p. 37- 


even more preposterous. Stated in his own language 
it runs thus: "He outhned the Supreme Court with 
jurisdiction both original and appellate," he anticipated 
"the splendid conception of the Supreme Court as it 
now exists," he "provided for the complete supremacy 
of federal law" and "paved the way for Marshall's 
great judgment in Cohens v. Virginia." 

What is the basis for these sweeping assertions? 
It is supplied by the following passage from Web- 
ster's pamphlet : "That the supreme authority should 
be vested with powers to terminate and finally decide 
controversies arising between different States, I take 
it, will be universally admitted, but I humbly appre- 
hend that an appeal from the first instance of trial 
ought to be admitted in causes of great moment, on 
the same reasons that such appeals are admitted in all 
the states of Europe."^ 

The important point to be made clear in this refer- 
ence is the meaning of the term "the supreme author- 
ity." Obviously, it is the same "supreme authority" 
for which already Webster has urged the right to 
levy a customs duty® ; again it is the same "supreme 
authority" for which in the paragraph immediately 
following the one just quoted from he claims the 
"power of peace and war, and forming treaties" : it 
is, in short, Congress}'^ But also, it should be ob- 
served, Webster himself claims no credit for origi- 
nality in urging that Congress should have power to 
terminate "controversies arising between different 

"lb. p. 31. 
"lb. p. 26. 
"/&. p. 33. 


States," and his modesty in this respect is most be- 
coming, since by Article IX of the Articles of Con- 
federation, Congress was ah'eady possessed of this 
power. Yet it is certain that the Articles of Con- 
federation did not produce a Cohens v. Virginia. 

But not only would Mr. Taylor have it that Webster 
proposed the Supreme Court with its present jurisdic- 
tion, but also that he prevised the entire federal ju- 
dicial system. Thus on page 18 of the memorial to 
Congress he writes as follows : "After an elaborate 
discussion of the qualifications of members of Con- 
gress ... he proceeded to define a part of the origi- 
nal jurisdiction of the Supreme Court of the United 
States by saying 'that the supreme authority should be 
vested with power to terminate and finally decide con- 
troversies between different States.' He also said 'to 
these I would add judges of law and chancery.' Thus 
the entire federal judicial system was distinctly 

Mr. Taylor's endeavor to identify Webster's "su- 
preme authority" with the present Supreme Court has 
been already disposed of. Our interest at this point 
is in the second one of the sentences just quoted. 
What is the significance of the word "these" in this 
sentence, to whom does it refer? Mr. Taylor's ob- 
vious intention is to convey the impression that it 
refers to the "supreme authority," that is, as he would 
have it, the Supreme Court. As a matter of fact, 
however, when we turn to Webster's pamphlet we 
find "these" separated from the antecedent which Mr. 
Taylor provides for it by more than five pages, ^^ and 
"7&. pp. 31 and 36. 


that the antecedent which Webster suppHes has noth- 
ing to do with the "supreme authority," but refers to 
those Ministers of State who were to constitute his 
council of legislative revision. "To these," he writes, 
"I would add judges of law and chancery, but I fear 
they will not be very soon appointed." In other 
words, the very sentence from which Mr. Taylor pre- 
sumes to quote in support of his proposition that 
Webster foresaw the federal judicial system, proves 
precisely the contrary. 

And with Webster's federal judiciary thus vanish- 
ing in the thin air of illusion, what becomes of the 
further claim that he conceived the idea of a "supreme 
law of the land" enforceable by that judiciary? The 
fact is of course that Webster never even distantly 
approached such a conception. It is true that he 
would give the "supreme authority" "sufficient powers 
to enforce the obedience of all subjects of the United 
States" to its treaties^^ and "to punish all transgressors 
in all these respects, "^^ but what is the method he 
relies upon for making good these powers of enforce- 
ment? He sets it forth on page 45 of the published 
pamphlet thus : "I therefore propose, that every per- 
son whatever, whether in public or private character, 
who shall, by public vote or overt act, disobey the su- 
preme authority, shall be amenable to Congress, shall 
be summoned and compelled to appear before Con- 
gress, and, on due conviction, suffer such fine, impris- 
onment, or other punishment, as the supreme authority 
shall judge requisite." This, from "the Architect of 

''lb. p. 31. 
"76. p. 32. 


the Federal Constitution," who, according to Mr. Tay- 
lor, "proposed the division of a Federal State into 
three departments, executive, legislative, and judicial, 
the organization of each of which he worked out" ! 

However, we must look at this proposition of Web- 
ster's from another point of view, namely, as a pro- 
posal to make the federal power operative upon 
individuals, without the intervention of the States, 
which, according to Mr. Taylor, was yet another, in- 
deed the most important of Webster's discoveries. 
Thus, in his letter memoriaHzing Congress "in behalf 
of the Architect of our Federal Constitution," Mr. 
Taylor writes : "Having thus defined his fundamental 
concept of a federal government operating directly on 
the citizen, the great one boldly accepted the inevitable 
corollary that such a government must be strictly or- 
ganized and equipped with ... all the usual appara- 
tus of a government, all bearing directly upon every 
citizen of the United States without any reference to 
the government of the several States."^'^ But now 
what is the fact of the matter? It is that Webster had 
not the least idea of dispensing with the State govern- 
ments as the usual intermediaries between the govern- 
ment of the Union and its subjects. Thus, while 
vesting Congress with a customs revenue, he still 
retains State requisitions.^^ Again, his notion of hail- 
ing persons before Congress for transgressing the acts 
of the Union is devised principally, it seems plain, 
with the idea of punishing members of the State legis- 
latures for voting measures opposed to the "supreme 

"/&. p. 16. 

" lb. pp. 30, 43- 


authority." But finally, it is upon State coercion that 
he relies principally for securing the authority of the 
Federal Government. Thus he writes: "There re- 
mains one very important article still to be discussed, 
namely, what methods the Constitution shall point out 
to enforce the acts and requisitions through the several 
States; and how the States which refuse or delay 
obedience to such acts and requisitions shall be 
treated." And again : "to leave all the States at liberty 
to obey" the acts of Congress "or not with impunity, 
is, in every view, the grossest absurdity." And again: 
"every State in the Union is under the highest obliga- 
tion to obey the supreme authority of the whole." 
And again : "I cannot therefore admit, that the great 
ends of our Union shall lie at the mercy of a single 
State, or that the energy of our government should be 
checked by a single disobedience." What he pro- 
posed, accordingly, was this : first, that any State 
might petition Congress for the repeal of any law or 
decision, and that if a majority of the States did so 
propose, the law or decision in question should be re- 
pealed, but secondly, that "if the execution of any act 
or order of the supreme authority shall be opposed by 
force in any of the States ... it shall be lawful for 
Congress to send into such State a sufficient force to 
suppress it."^® 

In other words, under Webster's scheme, as under 
the Articles of Confederation, the States still re- 
mained the essential units of the Federal Government, 
and the supremacy of the federal authority was to be 

'"lb. pp. 43-7- 


secured by State coercion. But with reference to 
State coercion, there are just these two facts to be re- 
membered: first, that the idea was not original with 
Webster, having been proposed as early as March 
1 78 1, by a committee of Congress itself, the spokes- 
man of which was Madison; secondly, that the idea 
was utterly repudiated by the Convention that framed 
the Constitution, as impracticable and destructive and, 
under the system before the Convention, unnecessary. 
And yet Mr. Taylor asserts that Webster's pamphlet 
furnished the Convention of 1787 "the basis of its 
proceedings" ! 

One point further. In his recent book on The Ori- 
gin and Growth of the American Constitution, as 
earlier, Mr. Taylor has endeavored to secure for Web- 
ster the credit for a pamphlet written in 1781 in which, 
Hamilton's letter to Duane aside, the proposition of a 
continental convention for the purpose of enlarging 
the powers of Congress was first broached. Mr. 
Taylor bases this claim upon the testimony of Madi- 
son, given late in life. This testimony, however, the 
historian Bancroft specifically rejects : first, because, 
when at a later period Webster collected his pamphlets 
in a volume, he did not incltide the pamphlet in ques- 
tion; secondly, because the style of the pamphlet is 
totally unlike that of the rest of Webster's writings; 
thirdly, because the bill for the printing of the 
pamphlet was made out to one William Barton; 
fourthly, because "Barton from time to time wrote 
pamphlets, of which on a careful comparison, the style, 
language and forms of expression are found to corre- 
spond to this pamphlet published in 1781." Notwith- 


Standing this convincing array of reasons, Mr. Taylor 
has the hardihood in a footnote^'' to write thus : "No 
attention should be paid to Bancroft's vain attempt to 
discredit Madison's statement . . . Madison was on 
the ground and knew the facts; Bancroft's inference 
is based on flimsy hearsay nearly a century after the 
event" ! 

Altogether, it becomes quite clear that Mr. Taylor's 
efforts to enroll Pelatiah Webster with the world's 
great lawgivers have failed, — although, of course, one 
could never predict what a cipher might yet reveal! 
But indeed Mr. Taylor should have better assessed 
the difficulties of his enterprise. For while rural 
churchyards may now and then shelter "some mute, 
inglorious Milton," it seems most unlikely that a 
period in which both the minds of men and the print- 
ing press fairly teemed with schemes of constitutional 
reform, — when politics was the intellectual interest, — 
would have relegated a really superior thinker along 
these lines to an undeserved oblivion. Rather it would 
have provided genius with platform and pedestal — as 
in truth it did in the case of both Hamilton and 
Madison. The author of the pamphlet of February 
i6, 1783, was, however, no genius. Madison, on the 
basis of his recollection of him, even hesitated to 
credit him with ability. For having described him 
as "an able citizen of Philadelphia," he later struck 
out the adjective. No doubt to have been a citizen 
of Philadelphia was not without merit, but after all, 
it hardly entitles one of itself to a place with Moses 
and Lycurgus. 

" See The Origin and Growth of the American Constitution, 
p. 27. 



The purpose of the following study is to consider 
the Dred Scott decision^ in the light of legal doctrine 
contemporary with it, in the view particularly of re- 
assessing the pronouncement therein of unconstitu- 
tionality upon the Missouri Compromise.* 

The main facts leading up to and attending this 
famous case may be summarized as follows :* Dred, 
a slave belonging to an army officer named Emerson, 
was taken by his master from the home State, Mis- 
souri, first into the free State of Illinois and thence 
into that portion of the national territory in which, 
by the eighth section of the Missouri Compromise, 
slavery had been "forever prohibited." Here master 
and slave remained two years before returning to 
Missouri, the latter in the meantime marrying with his 
master's consent. In 1852 Dred sued his master for 

^ In substance this paper was read before the American His- 
torical Association at its annual meeting of December, 1910, and 
was later published in more extended form in the Am. Hist'I 
Rev., XVII, No. I. 

' ig Howard 393-633 (cited below as "Rep.")- 

" For the conventional view of Scott v. Sanford, see James 
Ford Rhodes, History of the United States, II, 251 ffg. ; James 
Schouler, History of the United States, V. 377 ffg. ; Nicolay 
and Hay, Abraham Lincoln, II., ch. 4; Theodore Clarke Smith, 
Parties and Slavery, ch. 14. 

* The agreed statement of facts is to be found. Rep. 397-399, 



freedom in one of the lower State courts and won the 
action, but upon appeal the decision was reversed by 
the supreme court of the State, upon the ground that 
appellee's status at home was fixed by State law regard- 
less of what it had been abroad — a decision which 
plainly ran counter to the whole trend of decision by 
the same court for the previous generation. There- 
upon the case was remanded to the inferior court for 
retrial, but Dred, having in the meantime become the 
property of one Sanford, a citizen of New York, now 
decided to bring a totally new action in the United 
States circuit court for the Missouri district, under 
section ii of the Act of 1789. In order to bring this 
action Dred had of course to aver his citizenship of 
Missouri, which averment was traversed by his ad- 
versary in what is known as a plea in abatement, deny- 
ing the jurisdiction of the court upon the ground that 
plaintiff was the descendant of African slaves and had 
been born in slavery. The plea in abatement the 
circuit court overruled, but then proceeded to find the 
law on the merits of the case for the defendant; and 
from this decision Dred appealed to the United States 
Supreme Court. 

Scott V. Sanford was first argued before the Su- 
preme Court in the December term of 1855. From a 
letter of Justice Curtis we learn that in the view the 
court then took of the case, it would find it unneces- 
sary to canvass the question of the constitutionality of 
the Missouri Compromise.^ And indeed it was evi- 
dently of a mind to evade even the question of juris- 

" Curtis to Ticknor, April 8, 1856: George Ticlcnor Curtis, 
Life of Benjamin Robbins Curtis, I, 80. 


diction, had it not been for the fact, as it presently- 
developed, that Justice McLean, who aspired to the 
Republican presidential nomination, had determined to 
make political capital of the controversy by writing a 
dissenting opinion, reviewing at length the history of 
African slavery in the United States from the Free 
Soil point of view." McLean's intention naturally 
produced some uneasiness among his brethren and 
particularly such as came from slave States, three of 
whom now began demanding reargument of the ques- 
tions raised by the plea in abatement. This demand 
being acceded to, the case came on for reargument in 
the December term of 1856, that is, after the presi- 
dential election was past. Yet even now it was origi- 
nally the purpose of the court to confine its attention 
to the question of law raised by the circuit court's de- 
cision, which rested upon the same ground as the State 
supreme court's earlier decision, and Justice Nelson 
was commissioned to write an opinion sustaining the 
circuit court. '^ 

"Ashley of Ohio's positive testimony, on the basis of report 
current at the time Scott v. Sanford was pending, supplies the 
explanation needed of the demand for reargument, since the 
final disposition of the case would be precisely the same whether 
the circuit court were held to have erred in taking jurisdiction 
or, having rightfully taken jurisdiction, to have properly decided 
the case on its merits : Congressional Globe, 40th Cong., 3d 
sess., App., p. 211. Ashley's testimony is moreover confirmed 
by that of Justice Grier in the letter cited below in note 9. See 
also McLean's opinion, Rep. 529-564, and Curtis's animadver- 
sions on the same, ih., 620. 

' Rep. 529-564. The fact that Nelson was commissioned to 
write an opinion stistaining the lower court again shows that 
intrinsically the question of the lower court's jurisdiction was 
regarded as unimportant. 


But with the defeat of Fremont, and Buchanan's 
election, the advantage of position now lay with the 
pro-slavery contingent of the court. Two of this 
group, accordingly, Wayne of Georgia and Catron of 
Tennessee, soon began urging the notion that, as ex- 
pressed in Wayne's very frank opinion, "the peace and 
harmony of the country required the settlement . . . 
by judicial decision" of the "constitutional principles" 
involved in the case.* From Daniel of Virginia and 
Campbell of Georgia, the two agitators apparently en- 
countered little opposition; indeed, their well-founded 
apprehension seems to have been that these two justices 
would seize the occasion to "throw out" "some extreme 
views." The aged Chief Justice proved at first more 
difficult, but he too at last yielded and consented to 
write what in the Report is absurdly labelled "the 
Opinion of the Court," covering all issues that had 
been raised by counsel's argument. It now only re- 
mained to align one of the Northern justices with the 
majority, since otherwise the sectional and partisan 
character of the decision would appear too palpable. 
On February 19, 1857, Catron, whose own efforts 
to this end had thus far proved unavailing, appealed 
to the President-elect to persuade his fellow Pennsyl- 
vanian, Grier, to join "the majority of his brethren" 
in a broad gauge decision of the entire question of 
Congress' power in the territories, instead of taking, 
as he seemed disposed to do, "the smooth handle for 
the sake of repose." Buchanan, at once wrote Grier 
as he was bid, and Grier promptly responded with the 

'Rep. 4S4-S- 


desired promise. In his inaugural address, a few days 
later, Buchanan, again taking his orders from Catron, 
referred to the pending decision, indicated the scope 
it would take, and bespoke the acquiescence of all good 
citizens in it, "whatever it might be" !® 


Hostile criticism of the Dred Scott decision, natur- 
ally, has always found its principal target in the Chief 
Justice's opinion, and the gravamen of such criticism 
has always been that the portion of it dealing with 
the Missouri Compromise, was obiter dictum. I do 
not, however, concur with this criticism, for reasons 
which I shall now endeavor to make plain. 

To begin with, it ought to be clearly apprehended 
what difficulty attaches to a charge of this sort against 
a deliberate utterance of the Supreme Court of the 
United States, evidently intended by it to have the 
force and operation of law, and for the reason that 
the ultimate test of what is law for the United States 
is, and at the time of the Dred Scott decision was, the 
opinion of the Supreme Court. On the other hand, 
the Supreme Court is not a legally irresponsible body : 
by the very theory that makes it final judge of the laws 
and the Constitution it is bound by these ; as by virtue 

" Catron's and Grier's letters will be found in the Works of 
James Buchanan (J. B. Moore Ed.) X, 106-8 fn. Grier's 
answer of Feb. 23 to Buchanan's note gave the President-elect 
complete information as to the alignment of the Court. A. H. 
Stephens was aware of the scope the decision was to take as 
early as Jan. 1857 : Rhodes, II, 253. And to know the scope of 
the decision was, in view of the make^ip of the court, to know 
its purport. 


of its character as court it is bound by the lex curiae, 
that is to say, is bound to make consistent appHcation 
of the results of its own reasoning, and to honor the 
precedents of its own creation unless it is able to stig- 
matize them as erroneous. What the charge of obiter 
dictum amounts to then is this : first, that the action 
of the Chief Justice in passing upon the constitution- 
ality of the eighth section of the Missouri Compromise 
was illogical, as being inconsistent with the earlier 
part of his opinion, the purport of which, it is alleged, 
was to remove from the court's consideration the rec- 
ord of the case in the lower court and, with it, any 
basis for a pronouncement upon the constitutional 
question; and secondly, that it was in disregard of 
precedent, which, it is contended, exacted that the 
court should not pass upon issues other than those its 
decision of which was strictly necessary to the deter- 
mination of the case before it, and particularly that 
it should not unnecessarily pronounce a legislative 
enactment unconstitutional. Let us consider these two 
points in order. 

As already indicated, the primary question before 
the court upon the reargument was what disposition 
to make of the plea in abatement which the circuit 
court had overruled, thereby taking jurisdiction of 
the case,^" and upon this point a majority of the court, 
including both Chief Justice Taney and Justice Curtis, 
ruled decisively both that the plea in abatement was 
before it and that the decision of the circuit court as 
to its jurisdiction was subject to review by the Su- 

" Supreme Court Reports, Lawyer's Edition, Bk. xv., 694, 697. 


preme Court." Evidently the charge of illogicahty 
lies against only those judges of the above-mentioned 
majority who, after sustaining the plea in abatement 
and so pronouncing against the jurisdiction of the 
circuit court upon the grounds therein set forth, passed 
to consider the further record of the case, by which 
the constitutional issue was raised. But was such pro- 
ceeding necessarily illogical? Upon this point ob- 
viously the pertinent thing is to consider Taney's own 
theory of what he was doing, which he states in sub- 
stantially the following language at the conclusion of 
his argument on the question of plaintiff's citizen- 
ship : But waiving, he says, the question as to whether 
the plea in abatement is before the court on the writ 
of error, yet the question of jurisdiction still remains 
on the face of the bill of exceptions taken by plain- 
tiff in which he admits that he was born a slave 
but contends that he has since become free; for if he 
has not become free, "he is still a slave and certainly 
incapable of suing in the character of a citizen."^^ In 
other words, the Chief Justice's theory was, not that 
he was canvassing the case on its merits, which he 
could have done with propriety only had he chosen to 
ignore the question of jurisdiction, but that he was 

"This majority consisted of the Chief Justice and Justices 
Wayne, Daniel, Campbell, and Curtis. Grier considered it 
sufficient to canvass the question of the lower court's jurisdiction 
on the basis of the facts stated in the bill of exceptions. Nelson 
did not consider the question of jurisdiction. Catron and 
McLean did not deem the question of jurisdiction to be before 
the court. 

" Rep. 427. Note also the Chief Justice's statement of the 
issue at the opening of his opinion, Rep. 400. 


fortifying his decision upon this matter of jurisdiction 

by reviewing the issues raised in the bill of exceptions, 

as well as those raised by the plea in abatement; in 

other words that he was canvassing the matter of 

jurisdiction afresh. 

The question of the validity of the Chief Justice's 

way of proceeding then comes down to this question : 

Is it allowable for a court to base a decision upon more 

than one ground and if it does so, does the auxiliary 

part of the decision become obiter dictum f On the 

general question of what constitutes dictum we find 

the writer in the American and English Encyclopedia 

of Law indicating the existence of two views among 

Common Law courts. By one of these views none of 

a judicial opinion is decision save only such part as 

was absolutely necessary to the determination of the 

rights of the parties to the action. By the other view, 

on the contrary, all of an opinion is decision which 

represents a deliberate application of the judicial mind 

to questions legitimately raised in argument. ^^ But 

on the precise question just stated the above-mentioned 

writer speaks as follows : 

"Where the record presents two or more points, any 
one of which, if sustained, would determine the case, 
and the court decides them all, the decision upon any 
one of the points cannot be regarded as abiter. Nor can 
it be said that a case is not authority on a point because, 
though that point was properly presented and decided 
in the regular course of the consideration of the case, 
another point was found in the end which disposed Oif 
the whole matter. The decision on such a question is as 

"Encyc. (2d ed.), "Dictura," IX, 452-453; "Stare Decisis," 
XXVI, 168-169. Cf. Carroll v. Carroll's Lessee, 16 How. 275, 
287, and Alexander v. Worthimgton, 5 Md. 471, 487. 


much a part of the judgment of the court as is that on 
any other of the matters on which the case as a whole 
depends. The fact that the decision might have been 
placed upon a different ground existing in the case does 
not render a question expressly decided by the court 
a dictum."" 

In support of this view are cited cases which ante- 
date the Dred Scott decision and others which, though, 
of later date, plainly purport to set forth long stand- 
ing and established doctrine. ^^ But logic too supports 
the same view of the matter. For the contrary view, 
by keeping open a choice by interested parties between 
the diverse grounds of decisions, would leave the law 
unsettled precisely in proportion as the courts had 
presumed to settle it. 

Still it is urged that constitutional questions com- 
prise a peculiar class of questions which should be 
left undecided if possible. To quote Justice Curtis's 
protest against the Chief Justice's opinion : "A great 
question of constitutional law, deeply affecting the 
peace and welfare of the country, is not ... a fit 
subject to be thus reached"; such is the argument.^® 
So far, however, is this alleged exception from being 
justified by the history of the matter, that it would be 
far nearer the truth to say that, if constitutional cases 
comprise a class by themselves in this reference, they 
warrant an exceptionally broad view of the legal value 

"lb., 171. I am indebted for this reference to Albert W. R. 
Ewing's Legal and Historical Status of the Dred Scott Decision 
(Washington, 1909). 

^See C. J. Waite in R. R. Cos. v. Schutte, 103 U. S. 118, 
cited with approval in Union Pacific R. R. Co. v. Mason City, 
etc., R. R. Co., igg U. S. 160. 

"Rep. 590. 


of judicial opinion. Let us consider as an example in 
this connection Chief Justice Marshall's decision in 
Cohens v. Virginia.^'' 

In that case the plaintiff in error had been indicted 
and put to trial and penalty under a Virginia statute 
for selling tickets for a lottery which Congress had 
chartered for the District of Columbia. As in the 
Dred Scott case, the primary question before the court 
was one of jurisdiction, though in this case the Su- 
preme Court's own jurisdiction, which counsel for Vir- 
ginia denied upon the ground, among others, that a 
State was defendant contrary to the Eleventh Amend- 
ment. This objection Marshall met in the following 
terms : "It is, then, the opinion of the court, that the 
defendant who removes a judgment rendered against 
him by a State court into this court, for the purpose 
of examining the question whether that judgment be 
in violation of the Constitution or laws of the United 
States, does not commence or prosecute a suit against 
the State."^® This utterance has from that day to 
the present been regarded as establishing the law on 
the point with which it deals, — and a vastly important 
point it plainly is.^* Yet by the test set up by the 
critics of Chief Justice Taney's opinion in Scott v. 
Sanford, the utterance is not decisive; for its author 
continues thus : "But should we in this be mistakeUj 
the error does not affect the case now before the 
conrt," since plaintiff in error is not "a citizen of an- 

"6 Wheat. 264. 
"/&. 411-12. 

" See, for example, Holmes v. Jennison, 14 Pet. 624 and 
Prigg V. Pa., 16 Pet. 539; also, Ableman v. Booth, 21 How. 506. 


Other State" nor the "subject of any foreign State," 
but a citizen of Virginia herself.^" 

In short, the critics of Chief Justice Taney take 
their view of the proper scope of judicial decisions 
from a particular line of Common Law precedents 
rather than from American Constitutional Law. 
Altogether, the only feasible definition, historically, 
of obiter dictum in the field of American Constitutional 
Law would seem to be, a more or less casual utterance 
by a court or members thereof upon some point not 
deemed by the court itself to be strictly before it and 
not necessary to decide, as preliminary to the deter- 
mination of the controversy before it. Such an utter- 
ance, for example, is that of Chief Justice Marshall at 
the close of his decision in Brown v. Maryland, where 
he says that he "supposes" that the principles he has 
just applied to a case arising in connection with for- 
eign commerce would also apply in a case of commerce 
among the States. ^^ This pronouncement is obviously 
an aside upon a point not argued before the Court and 
it is quite justifiably ignored by Chief Justice Taney in 
his opinion in the License Cases,^^ whereas the rest of 
Marshall's opinion in Brown- v. Maryland Taney treats 
as law, though the entire second portion of it, dealing 
with the "commerce" clause, was unnecessary, since 
the immediate issue before the court had already been 
disposed of under Article I, § 10, of the Constitution. 

Chief Justice Taney had therefore, it appears, a 
clear right to canvass the question of Dred's servitude 

=° See note 18. 

^' 12 Wheat, 419, 449- 

^5 How. 504, 574-578; see also J. McLean, ib. 594. 


in support of his decision that Dred was not a citizen 
of the United States, and he had the same right to 
canvass the question of the constitutionality of the 
Missouri Compromise in support of his decision that 
Dred was a slave. To all these points his attention 
was invited by arguments of counsel and to all of 
them he might cast it with propriety by a well-estab- 
lished view of the scope of judicial inquiry in such 
matters. If then the decision rendered by six of the 
nine judges on the bench, that the Missouri Compro- 
mise was unconstitutional, is to be stigmatized as un- 
warrantable, which is all that the court of history can 
do with it, it is not by pronouncing it to have been 
obiter dictum but by discrediting, from the standpoint 
of the history of Constitutional Law antedating the 
decision, the principles upon which it was rested. 


Turning then to consider the constitutional decision 
directly, we find our task simplified to this extent: 
that the entire court, majority and dissenting minority 
alike, are in unanimous agreement upon the proposi- 
tion that, whatever the source of its power, whether 
Article IV, § 3 of the Constitution or the right to 
acquire territory and therefore to govern it. Con- 
gress in governing territory is controlled by the Con- 
stitution — a proposition to which the court has always 
adhered, though there has been latterly some alter- 
ation of opinion as to what provisions of the Consti- 
tution are applicable in this connection. And this was 
the question that troubled the majority in the Dred 
Scott case. The Missouri Compromise was unconsti- 


tutional, that was certain ; but just why — that was im- 
mensely uncertain. 

The extremest position of all was taken by Justice 
Campbell, whose doctrine was that the only power 
Congress had in the territories, in addition to its 
powers as the legislature of the United States, was the 
power to make rules and regulations of a conservatory 
character "for the preservation of the public domain, 
and its preparation for sale or disposition." From 
this it was held to follow that whatever the Constitu- 
tion and laws of the States "validly determine to be 
property, it is the duty of the Federal Government, 
through the domain of jurisdiction merely federal, to 
recognize to be property."^^ This of course was the 
extremest Calhounism, from which it came later to be 
deduced, with perfect logic, that it was the duty of 
the Federal Government, not only to admit slavery into 
the territory, but to protect it there. But, as Benton 
showed in his famous Examination of the Dred Scott 
Case, this particular phase of Calhounism was, at 
the date of the Dred Scott decision, less than ten 
years old. 

But now it is a common view with historians, a 
view obviously traceable to Benton, that this decision 
rested exclusively upon Calhounist premises. Nothing 
could be farther from the fact. For though Justice 
Daniel of Virginia went almost as far as Justice 
Campbell in representing the power of Congress in 
governing the territories as a simple proprietary power 
of supervision, yet even he rejected Campbell's notion 
that Congress was the mere trustee of the States; 
^ Rep. 509-517; the quotations are from pp. 514 and 515. 


while Justices Catron of Tennessee, an old Jacksonian 
Democrat, Grier of Pennsylvania and of similar tradi- 
tions, Wayne, a Southern Whig, and the Chief Justice 
himself, could by no means consent thus to read the 
Constitution through the spectacles of the prophet of 
nullification. Upon what grounds then were these 
judges to rest their pronouncement of the unconstitu- 
tionality of the Compromise ? Let us first take up the 
case of Catron and then turn to that of the Chief 
Justice, who spoke upon this point for himself, for 
Grier and Wayne, and to some extent for Daniel. 

Catron paid his respects to the Calhounist point of 
view in the following words : "It is due to myself to 
say, that it is asking much of a judge, who has for 
nearly twenty years been exercising jurisdiction, from 
the western Missouri line to the Rocky Mountains, 
and, on this understanding of the Constitution," 
namely that Congress has power really to govern the 
territories, "inflicting the extreme penalty of death for 
crimes committed where the direct legislation of Con- 
gress was the only rule, to agree that he had been all 
the while acting in mistake, and as an usurper." Set- 
ting out from this extremely personal point of view, 
Catron found that Congress possessed sovereignty 
over its territory, limited however in this case by the 
treaty with France, with which the anti-slavery article 
of the Missouri Compromise was, he held, incom- 
patible, and always by the "spirit" of the Constitution, 
which stipulates for the citizens of each State "the 
privileges and immunities of citizens m the several 

^'Rep. 522-527. 


A more extravagant line of reasoning it would be 
difficult to conceive. It is true that, at this date, the 
Supreme Court had not itself as yet had occasion to 
determine finally the legal effect of a congressional 
enactment in conflict with an earlier treaty, but the 
generally recognized doctrine was clearly that the 
treaty-making power could not prejudice Congress in 
the exercise of its granted powers; and this view had 
registered itself in reputable judicial decision only a 
few years before the Dred Scott decision, while to- 
day, of course, it is established law.^^ But the appeal 
to Article IV, § 2, of the Constitution, significantly 
vague as it was, was even less warrantable. All 
that this section of the Constitution was ever supposed 
to require was that no State should deny citizens of 
another State sojourning within its boundaries the 
personal rights of its own citizens, — personal rights, 
that is, as distinguished from political rights.^® Yet 
Catron seeks, not only to extend this provision to the 
powers of Congress, but also to make it guarantee 
citizens of States the rights enjoyed by them in their 
home States in every other State and territory of the 
Union ! One of Lincoln's criticisms of Scott v. San- 
ford was that logically it prohibited even the States 
from forbidding slavery within their respective limits. 
Restricted to Catron's opinion the criticism was valid. 

But the most strongly nationalistic, or more precisely 

^° See the writer's National Supremacy (N. Y. 1913), 9-12 and 
references. The decision referred to was Taylor v. Morton, 2 
Curt. 454 (i8ss). The law today is laid down in 112 U. S. 580 
(1884), 122 ib. 116 (1887), 124 ib. 190 (1888), 130 ib. 581 
(1889), 149 ib- 698 (1893). 

'"See Federalist No. 42, pp. 264-6 (Lodge's Ed.). 


federalistic, of all the opinions upon the constitutional 
question was that of the Chief Justice, who, again 
following Marshall, traced the power of Congress to 
govern territories to its power to acquire them. Upon 
what ground then was he to rest his condemnation 
of the Missouri Compromise ? In one or two passages 
Taney speaks of Congress as "trustee," but it is as 
trustee of the "whole people of the Union" and for 
all its powers. The limitations upon the power of 
Congress must therefore, in this case as in all cases, 
be sought in the Constitution, "from which it derives 
its own existence, and by virtue of which alone it 
continues to exist and act as a government and sov- 
ereignty." From this it follows that when Congress 
enters a territory of the United States it cannot "put 
off its character and assume discretionary or despotic 
powers which the Constitution has denied to it" : it 
is still bound by the Constitution.^'^ Therefore Con- 
gress can make no law for the territories with respect 
to establishing a religion, nor deny trial by jury 
therein, nor compel anyone to be a witness against 
himself in a criminal proceeding. "And," the Chief 
Justice continues, 

"The rights of private property have been guarded with 
equal care." They "are united with the rights of persons 

'' Rep. 448-9. The italics are mine. Taney develops the 
doctrine that the U. S. can acquire territory only for the pur- 
pose of ultimately making States of it. This doctrine exactly 
reverses the argument, regarded sympathetically by Jefferson 
himself, against the validity of the La. Purchase : Henry Adams, 
History, II, chs. 4 and 5. Taney's opinion at this point was 
probably drawn in part from J. McKinley's opinion in Pollard's 
Lessee v. Hagan, 3 How. 212 (1845). 


and placed on the same ground by the Fifth Amendment 
to the Constitution, which provides that no person shall be 
deprived of life, liberty and property without due process 
of law. And an act of Congress which deprived a citizen 
of the United States of his liberty or property merely 
because he came himself or brought his property into a 
particular territory of the United States, and who had 
committed no offense against the laws, could hardly be 
dignified with the name of due process of law. . . . The 
powers over person and property of which we speak are 
not only not granted to Congress, but are in express terms 
denied. . . . And this prohibition is not confined to the 
States, but the words are general and extend to the whole 
territory over which the Constitution gives it power to 
legislate. ... It is a total absence of power everywhere 
within the dominions of the United States, and places 
the citizens of a territory, so far as these rights are 
concerned, on the same footing with citizens of the 
States. . . . And no word can be found in the Consti- 
tution which gives Congress a greater power over slave 
property, or which entitles property of that kind to less 
protection than property of any other description. The 
only power conferred is the power coupled with the duty 
of guarding and protecting the owner in his rights. "^^ 

Undoubtedly it must be conceded at the outset that 
in asserting for slave property a position within the 
Constitution equal to that of any other kind of prop- 
erty, the Chief Justice was entirely in the right, his 
Free Soil and Republican critics to the contrary not- 
withstanding. Their position, which was represented 
for the nonce in Justice McLean's dissenting opinion, 
was that there was a difference between slave property 
and other kinds of property arising from the alleged 
fact that slavery was contraiy to natural law, and that 
consequently, while the Constitution recognized prop- 

=^Rep. 450-1- 


erty in slaves within the States where slavery was 
permitted, it did not recognize it within the terri- 
tories. The argument was both erroneous and beside 
the point. Under our system of government title is 
acquired to property in nine cases out of ten under 
the jurisdiction of particular States and in accordance 
with the laws thereof, but once it has been so acquired, 
the subject-matter, whatever it be, is recognized by 
the Constitution as the property of its owner and his 
right to it as entitled to the protection of the 

But does this concession warrant the final sentence 
just quoted from the Chief Justice's opinion : "The 
only power conferred is the power coupled with the 
duty of guarding and protecting the owner in his 
rights" ? Plainly not, unless, first. Congress must 
always assume a protective attitude toward all prop- 
erty in the exercise of all of its powers, or secondly, 
slave property occupied in 1857, not simply a position 
of equality with other property in the Constitution, 
but one of superiority. In behalf of the latter inter- 
pretation of his position, however, the Chief Justice 
offers not a word of proof. On the contrary, his 
whole argument is an implied disavowal of such an 
interpretation. Considering his repeated assertion 
that Congress is a sovereign legislature in the exercise 
of what powers belong to it, it seems clear that we can 
do his argument full justice only by treating it as 
tantamount to the proposition that Congress in the 
exercise of its powers has the same control of property, 
of whatever description, that any government would 


have in the exercise of the same powers, limited by 
the prohibitions of the Constitution in protection of 

But what provision of the Constitution protective 
of the property right does the Chief Justice rely upon 
in this instance? As we have just seen, the "duey' 
process of law" clause of the Fifth Amendment. This, 
he recites, "provides that no person shall be deprived 
of life, liberty, and property, without due process of 
law. And," he comments, "an act of Congress which 
deprives a citizen of the United States of his liberty or 
propeity merely because he came himself or brought 
his property into a particular territory of the United 
States, and who had committed no offence against the 
laws could hardly be dignified with the name of due 
jM'ocess of law." 

At first approach there are two striking features to 
this argument, first, its apparent irrelevancy and sec- 
ondly, its apparent begging of the question. It is ad- 
mitted that property may be taken for "an offense 
against the laws," but it is implied that there has been 
no such offense. But this implication assumes the 
very point to be proved, namely, the unconstitution- 
ality of the act of Congress under review. For if this 
was constitutional it was law, and an attempt to take 
slaves into a territory in contravention of it was "an 
offense against the laws." And not less striking is 
the matter of irrelevancy. For to the lay mind the 
term "due process" suggests simply correct procedure, 
and in the Dred Scott case no question of procedure 
was involved, the antagonists of the Missouri Com- 


promise being opposed, not to the method of its en- 
forcement but to its enforcement at all, not to the 
mode of its operation but to its substance. 

However, once we consult the Constitutional Law 
of the period, both these difificulties disappear and the 
question of the historical validity of Chief Justice 
Taney's argument stands before us on its merits.^® 
Throughout the States in 1857, it was a generally 
acknowledged principle that there were certain limits 
beyond which legislative power was inherently in- 
capable of proceeding in control of an owner's right 
to his property, that what the law once recognized to 
be property legislative power could not invade unduly. 
By the same date moreover, in some of the States, 
this principle had become established upon the "due 
process of law" and "law of the land" clauses of their 
respective' constitutions. And thus much for the sup- 
posed irrelevancy of the Chief Justice's argument. 
But by the same line of reasoning, the petitio principii 
pointed out therein also vanishes. For if the due 
process clause prohibits legislation bearing with undue 
severity upon existing property rights, then all new 
legislation affecting such rights must be compared in 
this reference with the law which already defined those 
rights. In other words, the term "laws" comes to 
mean the law as it stood before the new legislation was 
enacted; and "offenses against the laws" means 
offenses against the law thus defined. 

What, then, in 1857, was that undue severity against 

^ For a fuller consideration of the subjects treated immedi- 
ately below, see my articles in 24 Harv. Law Rev., 366 flfg., 
460 ffg. 


existing property rights which automatically con- 
signed legislative acts to the wastebasket? To begin 
with, every court in the country acknowledged that 
private property could be taken by government for 
only public uses, and further, that it could be so taken 
only upon just compensation to the owner. But at 
this point agreement ceased. In the years immediately 
preceding the Dred Scott decision, many States passed 
anti-liquor acts which, generally speaking, prohibited 
not only the sale of intoxicating liquors save for medi- 
cinal purposes and by licensed chemists, but also the 
keeping of them, when not designed for this purpose, 
elsewhere than in the dwelling of the owner; and such 
acts applied equally to liquors in existence at the mo- 
ment of their going into effect and to liquors to be 
acquired in the future. In objection to them, accord- 
ingly, the argument soon began to be shaped, that 
though they did not purpose to transfer to the State 
outright the title to existing stocks of liquor, they 
were in fact, in relation to these, equivalent to acts 
of confiscation and void as such. Yet in twelve 
States statutes of this description were upheld as 
plainly within legislative power. Only in New York 
in the case of Wynehamer v. the People,^" was the act 
of the legislature disallowed as contrary to the con- 
stitutional requirement of due process. 

Now it is an interesting circumstance that the pub- 
lished briefs of counsel in Scott v. Sanford make no 
reference to the Fifth Amendment.^^ And connected 
with this circumstance is another not less interesting, 

■"13 N. Y. 378 (1856). 

='See Lawyer's Edition, Bk. XV, 691-8. 


namely, that Wynehamer v. the People was decided 
by the New York court of appeals at the very close of 
the interval between the first and second argument of 
Scott V. Sanford. All things consideixd, there can be 
little doubt that Chief Justice Taney took his doctrine 
from the New York court of appeals. v/ Does then 
Wynehamer v. the People furnish a precedent for 
Scott V. Sanford? Unquestionably it does, if %ve as- 
sume that there was already slave property in the 
territory governed by the eighth section of the Mis- 
souri Compromise at the date of its enactment. But 
this, the Chief Justice does not attempt to show, nor 
indeed, does he mention the point. Also this consider- 
ation would not, necessarily certainly, have affected 
the validity of the Compromise as to slave property 
brought into the territory at a later date. But finally, 
even if we give this precedent its widest possible oper- 
ation, yet it represented the doctrine of a single State 
and was in fiat conflict with the doctrine of a fidl 
dozen other States. 

But now let us recall once more the acknowledged 
purpose of the court in entering upon the constitu- 
tional question in Scott v. Sanford. It was to settle 
the question of Congress' power over slavery in the 
territories, — which meant, however, not Congress' 
power over slavery actually existing in the territories, 
but its power to prevent slaves from being brought 
into the territories henceforth. And on this question 
the New York precedent throws not the least light. 
Two of the judges in the Wynehamer case expressed 
the opinion that the withdrawal of the right of sale 


from subsisting owners would alone suffice to invali- 
date a legislative act, but the other judges gave no 
countenance to this doctrine, and the court itself later 
formally disavowed it. The decision in the case is 
based solely on the proposition that the total effect of 
the act before the court was the destruction of certain 
existing property. But for the Chief Justice to have 
contended that the prohibition by Congress of slavery 
in the territories effected anything like a destruction 
of existing slave property outside the territories 
would have been absurd in the extreme, nor in fact 
does he venture to hint such a notion. 

The only purpose of the Missouri Compromise and 
of later acts of Congress of the same character, and 
their only effect, was to withdraw from owners out- 
side the territories governed by them the right to enter 
there with their slaves. Viewed in this light there 
can be no doubt that so far as available Constitutional 
Law stood in 1857, these acts were entirely valid under 
the Fifth Amendment. Otherwise, as Justice Curtis 
inquired in his dissenting opinion, what was to be 
said of the Ordinance of 1787, which Virginia and 
other States had ratified notwithstanding the presence 
of similar clauses in their constitutions? What again 
was to be said, upon that hypothesis, of the act of 
Virginia herself, passed in 1778, which prohibited the 
further importation of slaves? What was to be said 
of numerous decisions in which this and analogous 
laws had been upheld and enforced by the courts of 
Maryland and Virginia, against their own citizens 
who had purchased slaves abroad, and that without 


anyone's thinking to question the validity of such laws 
on the ground that they were not law of the land 
or due process of law? What was to be said of the 
act of Congress of 1808 prohibiting the slave trade 
and the assumption of the Constitution that Congress 
would have that power without its being specifically 
bestowed, but simply as an item of its power to regu- 
late commerce? What finally, if the scope of con- 
gressional authority to legislate was thus limited by 
the Fifth Amendment, was to be said of the Embargo 
Act, which had borne with peculiar severity upon the 
people of the New England States, but the constitu- 
tionality of which had been recently asserted by the 
court in argument in the roundest terms.^^ 

Nonetheless, subsequent developments in our con- 
stitutional jurisprudence prove that Taney chose his 
ground in Scott v. Sanford with some prescience. In- 
deed, even before the War, the Republican ci-itics of 
the decision, instead of utilizing Curtis's very effective 

^ Rep. 626-627 ; the Virginia cases cited are S Call 425 and i 
Leigh 172, and the Maryland case is 5 Harr. and J. 107. The 
learned justice might have added 2 Munf. (Va.) 393. The case 
in which the Embargo Act was adverted to was U. S. v. Mari- 
gold, g How. 560, in which the court upheld an act of Congress 
prohibiting the importation of fraudulent coins. Justice Curtis 
should also have inquired how, upon the Chief Justice's argu- 
ment, Congress had power to exclude goods purchased by Ameri- 
can citizens abroad "merely because" the duty had not been paid 
on them. See also C. J. Marshall in Gibbons v. Ogden, 9 Wheat. 
I, 196-7 (1821), where the doctrine is stated that the only limi- 
tations to the power of Congress is regulating foreign and in- 
terstate commerce are the purely political limitations which 
arise from the responsibility of Congress to its constituents. See 
also Fed. Nos. 23 and 33, for similar doctrine as to some other 
powers of Congress. 



dissent at this point, themselves pounced upon the 
Fifth Amendment and by emphasizing the word 
"liberty" in it, instead of the word "property," based 
upon it the dogma that Congress could not allow 
slavery in the territories.^* After the Civil War 
Taney's Republican successor, Chase, invoked the 
Amendment in his opinion in Hepburn v. Griswold in 
the same sense in which Taney had invoked it, but 
only as a limitation upon the implied powers of Con- 
gress.*'' This doctrine was flatly rejected by the court 
itself, speaking through Justice Strong, in Knox v. 
Lee?^ Yet a few years later, Strong too was elaborat- 
ing the Taney-Chase point of view in his dissenting 
opinion in the Sinking Fund cases,*® and connect- 
ing it with the early New York and North Carolina 

But of course, the most noteworthy applications of 
the doctrine of Due Process of Law have been made by 
the courts in their interpretation of the Fourteenth 
Amendment, the terms "liberty" and "property" in 

^ See the Republican Platform of i860, par. 8. At this point 
the Republicans followed McLean's opinion rather than Curtis's. 
Xote the significance in this connection of the discussion as to 
whether slavery was recognized by the Constitution ; and also 
of the discussion as to whether it was recognized by natural law. 

^'S Wall. 603, 624; see J. Miller's cogent answer, ib. 637-638. 
Also, see the Chief Justice's own decision in Veazie Batik v. 
Fenno in the same volume of reports, 533 ffg. 

^ 12 Wall. 457, SSI. C. J. Chase elaborates upon his earlier 
argument under the Fifth Amendment at 580-582. 

"'99 U. S. 700, 737-739. See also the various justices in the 
Northern Securities Company case, 193 U. S. 197, 332, 362, 
397-400. See also J. Harlan in Adair v. United States, 208 U. S. 
161, 172-174; cf. J. McKenna, ib. 180-190, and J. Holmes, 191. 


which are to-day given a very extended significance. 
This development, however, has been matched by the 
pari passu development of the doctrine that legislative 
power extends, generally speaking, to the enactment 
of all reasonable laws and that such laws are "due 
process." The legislative stagnation that the earlier 
doctrine logically imported has thus been obviated. 
But at the same time, we have to give the Dred Scott 
case a place in the line of precedents from which has 
finally emerged one of the most fruitful doctrines of 
modern Constitutional Law.^^ 


But there is one other topic worth our brief con- 
sideration before closing this paper, namely, the char- 
acter of the issue between Chief Justice Taney and 
Justice Curtis upon the question of citizenship raised 
by Dred's attempt to sue in the federal courts. | The 
usual view of the issue referred to is that it resolved 
itself into a dispute as to whether negroes were in any 
case capable of citizenship at the time of the adoption 
of the Constitution. This account of the matter is 
inaccurate.^ A careful comparison of Chief Justice 
Taney's opinion with that of Justice Curtis reveals 
the fact that the fundamental issue between the two, 
though it is not very specifically joined, is not whether 
there may not have been negro citizens of States in 
1787 who upon the adoption of the Constitution be- 
came citizens of the United States, but from what 
source citizenship within the recognition of the Consti- 

" See. the present writer in 7 Mich. Law Rev. 642 ffg. 


tution was supposed to flow thenceforth. UiX)n this 
point, Curtis's view was that citizenship within the 
recognition of the Constitution in the case of persons 
born within the United States was through the States, 
while Taney's view was that a "citizen of the United 
States," to use his frequent phrase, always, unless de- 
scended from those who became citizens at the time 
of the adoption of the Constitution, owed his character 
as such to some intervention of national authority — 
was, in short, a product of the National Government.^^ 
Curtis's theory, it can hardly be doubted, was that of 
the framers of the Constitution, wherefore Taney's 
pretense of carrying out not only the spirit but the 
very letter of the Constitution as it came from the 
framers, becomes at this point particularly hollow.^'* 
On the other hand, Taney's view is a very logical, 
and indeed inevitable, deduction from his whole body 
of doctrine with reference to the dual nature of the 
federal system: the States independent and sovereign 
within their sphere and the National Government 
within its. This theory Taney had voiced from the 
beginning of his judicial career, so that, at this point 
he was at least acting consistently with his past. Also, 
without doubt, the doctrine in question was pretty well 

^ Taney states his position on this point at pp. 404-406 and 
417-422 of the Report, and Curtis states his at p. 581. 

^ Taney translates the "'citizens of each State" clause of the 
Constitution as "citizens of the United States," but the deriva- 
tion of this clause from the Articles of Confederation forbids 
any such notion. The original source of the Chief Justice's 
argument on the citizenship question is to be found in Reports 
of Committees, No. 80, 27th Congress, 3rd session, a very in- 
structive document. 


established by 1857, both in judicial decision and in 
political thinking.*" 

To summarize : I conclude, first, that the Dred 
Scott decision was not obiter dictum within any defi- 
nition of obiter dictum obtainable from a fair review 
of the practice of the Supreme Court, particularly 
under Marshall, in constitutional cases; secondly, that 
it was not based by the majority of those entering into 
it upon Calhounist premises; and thirdly, that Justice 
Curtis's supposed refutation of Taney's argument upon 
the question of Dred's title to a prima fa^ie citizenship 
within the recognition of the Constitution is a fiction. 
None of these results, however, goes far to relieve that 
decision of its discreditable character as a judicial ut- 
terance. When, as in this case, the student finds six 
judges arriving at precisely the same result by three 
distinct processes of reasoning, he is naturally dis- 
posed to surmise that! the result may possibly have 
induced the processes rather than that the processes 
compelled the result,\\ though of course such surmise 
is not necessarily sound; but when he discovers fur- 
ther that the processes themselves were most deficient 
in that regard for history and precedent in which 
judicial reasoning is supposed to abound, his surmise 
becomes suspicion; and finally when he finds that be- 
yond reasoning defectively upon the matter before 

" For a good statement of this doctrine, see Taney's opinion 
in Ableman v. Booth, cited supra in note 19. It should he noted 
in passing that this elucidation of the real is^e between Taney 
and Curtis on the citizenship question throws additional light 
on the close relation existing in Taney's mind between the ques- 
tion of Dred's seniitudc and that of his citizenship. 


them, the same judges deliberately gloss over material 
distinctions (as for example, in this case, the dis- 
tinction between sojourn and domicile) and ignore 
precedents that they have themselves created (as for 
example, in this case, the decisions regarding the 
operation of State decisions upon questions of comity) 
his suspicion becomes conviction. The Dred Scott 
decision cannot be, with accuracy, written down as 
usurpation, but it can and must be written down as a 
gross abuse of trust by the body which rendered it. 
The results from that abuse of trust were moreover 
momentous. During neither the Civil War nor the 
period of Reconstruction did the Supreme Court play 
anything like its due role of supervision, with the re- 
sult that during the one period the military powers 
of the President underwent undue expansion, and dur- 
ing the other the legislative powers of Congress. The 
court itself was conscious of its weakness, yet not- 
withstanding its prudent disposition to remain in the 
background, at no time since Jefferson's first admin- 
istration has its independence been in greater jeopardy 
than in the decade between i860 and 1870; so slow 
and laborious was its task of recuperating its shat- 
tered reputation. 



Under date of September 26, 1906, seven European 
nations entered into a treaty by which they agreed to 
prohibit within their respective dominions night work 
for women, and into another treaty by which they 
similarly agreed to prohibit the use of white phos- 
phorus in the manufacture of matches. These same 
countries have also entered into treaties with regard 
to the insurance of workmen against industrial acci- 
dents. Lastly, proposals which have already been 
formulated are to be submitted in September of the 
present year for an international agreement prohibit- 
ing the night work of young persons and fixing the 
maximum working day for women and young per- 
sons. The question arises, why, if other countries 
may enter into and carry into effect such engage- 
ments, may not the United States? 

The powers of the National Government, though 
enumerated, are each of them sovereign powers and 
keep pace in their development with the enlargement 
of the subject-matter amenable to them. Said the 
court in South Carolina v. the United States: 

"The Constitution is a written instrument. As such its 
meaning does not alter, and what it meant when adopted 
it means now. Being a grant of powers to a government, 

'^The following paper was read at the 20th annual tneeting 
of the Lake Mohawk Conference on International Arbitration, 
May 28, 1914- 



its language is general, and as changes come in social 
and political life, it embraces in its grasp all new con- 
ditions which are within the scope of the powers in terms 
conferred. In other words, while the powers granted do 
not change, they apply from generation to generation to 
all things to which they are in their nature applicable."^ 

With the growth of international trade relations, 
immigration, and other forms of international inter- 
course, the conditions of life within particular nations 
become of ever increasing concern to their neighbors, 
with the result that treaty-making among the inde- 
pendent states of the world tends to extend to matters 
earlier deemed to lie quite without its sphere. In 
this general development the United States must and 
does participate and for the resultant legal responsi- 
bilities the powers of the National Government are, 
if we adhere to the historically settled canons of 
Constitutional Law bearing on the subject, entirely 
adequate. In the words of Chief Justice Marshall: 
"The Constitution [was] intended to endure for ages 
and consequently to be adapted to the various crises 
of human affairs."^ 

^ 199 U. S. 437, 448-9. See also J. Moody in ///. Cent. R. R. 
Co. V. Howard., 207 U. S. 463, 520: "It is said that Congress 
has never before enacted legislation of this nature for the 
government of interstate commerce by land . . The funda- 
mental fallacy of this argument is that it misunderstands the 
nature of the Constitution . . . and forgets that its unchanging 
provisions are adaptable to the infinite variety of the changing 
conditions of our national life." C. J. Waite's wrell-known ut- 
terance in the Pensacola Tel. Co. v. the Western Un. Tel. Co. 
96 U. S. I, should also be recalled in this connection. 

^4 Wheat. 316, 415. Note also his words in the same place, 
p. 407 : "We cannot comprehend the train of reasoning which 
would maintain that the extent of power granted by the people 


But it will be objected that the regulation of the 
hours and conditions of labor falls in the United States 
to what is called the "police powers" of the States. 
This is true, but that fact does not withdraw the same 
subject from regulation by the National Government 
in the bona fide exercise of its powers. The National 
Government has only certain enumerated powers, but 
it may exercise these powers for all the legitimate 
purposes of government that events may bring within 
their reach. A like objection to the one just recited 
was made to the recent Mann Act forbidding the trans- 
portation of women from one State to another for 
immoral purposes. This, said the objectors, did not 
regulate commerce among the States for commercial 
purposes, but for moral purposes, and so invaded the 
power of the States to regulate the public morals. But 
Justice McKenna, speaking for the unanimous Court, 
replied : 

"Our dual form of government has its perplexities. 
State and Nation having different spheres of jurisdiction, 
but it must be kept in mind that we are one people ; and 
the powers reserved to the States and those conferred on 
the Nation are adapted to be exercised, whether inde- 
pendently or concurrently, to promote the general wel- 
fare, material and moral."* 

is to be ascertained, not by the nature and terms of the grant, 
but by its date." Note also the words of J. Story in Martin v. 
Hunter's Lessee, i Wheat. 304, 326: "The Constitution una- 
voidably deals in general language. . . . The instrument was 
not intended to provide merely for the exigencies of a few 
years, but was to endure through a long lapse of ages, the 
events of which were locked up in the inscrutable purposes of 
Providence." These words are quoted less as stating a rule of 
law however, than as indicating the point of view from which 
the Constitution must be construed if it is to last. 
*227 U. S. 308, 322. 


The utterance is in the very spirit of the words of 

the Preamble of the Constitution. 

Suppose, however, that the action taken by the 

National Government conflicts with that taken by the 

State with reference to the same subject-matter? The 

pertinent provision of the Constitution is undoubtedly 

Art. VI, par. 2 : 

"This Constitution, the acts of Congress in pursuance 
thereof, and the treaties made or which shall be made 
under the authority of the United States, are the supreme 
law of the land; and the judges of each State shall be 
bound thereby, anything in the constitution or laws of 
any State to the contrary notwithstanding." 

Words could not be plainer than these, especially when 
they are given their historical setting. 

The Convention of 1787 desired nothing so much as 
to get rid of that State intervention which had 
wrecked the Articles of Confederation. This it ac- 
complished in four ways : i — By referring the Con- 
stitution to the People ; 2 — By providing the National 
Government with executive machinery of its own; 
3 — By making the national Supreme Court the final 
interpreter of the Constitution; 4. — By providing for 
the supremacy in all cases of national authority as 
defined by the Constitution over conflicting State 
authority. The point of view of the Convention was 
voiced by Wilson thus : "With respect to the province 
and object of the General Government they [the 
States] should be considered as having no existence."^ 

'' See Madison's Notes, under date of June 25. Equally to the 
point was Read of Delaware's earlier objection to a proposition 
that the U. S. should guarantee the several States in their 
territory: "It abetted the idea of distinct States, which would 


Later a motion was offered in the Convention pro- 
hibiting the National Government "to interfere with 
the government of the individual States in any mat- 
ter of internal police which respects the government 
of such State only and wherein the general welfare 
of the United States is not concerned." Despite the 
careful language in which it was couched the motion 
was voted down by eight States to two.® 

The view that the reserved powers of the States 
comprise an independent limitation on national power 
probably found expression for the first time in the 
debate on Hamilton's Bank Project of 1791. Op- 
posed as he was to the Bank, Madison pronounced the 
argument fallacious : "Interference with the powers 
of the States," said he, "was no constitutional criterion 
of the power of Congress. If the power was not 
given, Congress could not exercise it; if given, they 
might exercise it, although it should interfere with 
the laws or even the constitution of the States."''^ 

Nevertheless, a generation later the same notion was 
again afoot. "It has been contended," recites Chief 
Justice Marshall in his opinion in Gibbons v. Ogden, 
"that if a law passed by a State in the exercise of its 
acknowledged sovereignty comes into conflict with a 
law passed by Congress in pursuance of the Constitu- 

be a perpetual source of discord." The proposition was then 
altered to the present guaranty of "'a republican form of gov- 
ernment" and was agreed to, nem. con.: ib. under date of June 
II. Considering the fact that territorial cessions so often fur- 
nish the purpose of treaties, the refusal of the Convention to 
make the guarantee in question is particularly significant. 

'Loc. cit. under date of July 17. 

' Annals of Cong. II, col. 1891. The emphasis is mine. 


tion, they affect the subject and each other hke equal 

and opposing powers." "But," the Chief-Justice 


J "The framers of our Constitution foresaw this state 
of things and provided for it, by declaring the supremacy 
not only of itself but of the laws made in pursuance of 
it. The nullity of any act inconsistent with the Consti- 
tution is produced by the declaration that the Constitu- 
tion is the supreme law. The appropriate application of 
that part of the clause which confers the same supremacy 
on laws and treaties is to such acts of Sta,te legislatures 
as do not transcend their powers, but, though enacted in 
the execution of acknowledged State powers, interfere 
with, or are contrary to the laws of Congress made in 
pursuance of the Constitution, or some treaty made un- 
der the authority of the United States. In every such 
case, the act of Congress or the treaty is supreme; and 
the law of the State, though enacted in the exercise of 
powers not controverted, must yield to it."* 

I admit that with the advance of the dissolving 
theories of the Great NuUifier, in the period between 
the death of Marshall and the Civil War, the doctrine 
of Gibbons v. Ogden was temporarily abandoned for 
the view that State power comprised of itself a limi- 
tation upon national power. Indeed, this view is, after 
all, but a particular form of Calhoun's doctrine. For 
while the actual business of nullifying national author- 
ity is farmed out, so to say, with the Supreme Court, 
the pretended basis of the power, namely, the vast, 
undefined powers of the States, remains the same. 

But th€ crucial fact is that the Supreme Court has 
to-day i-eturned to first principles. Of this such deci- 
sions as those in Henderson v. New York,^ in re 

'9 Wheat. I, 210-11 (1824). The emphasis is mine. 
"92 U. S. 279 (187s). 


Rahrer,^^ the recent Employers' Liability Cases/^ and 
Minnesota Rate Cases,^^ furnish proof positive, to say 
nothing of a host of dicta. 

Thtis in the Employers' Liabihty Cases, the court 
was confronted with the now notorious decision of 
Chief Justice Baldwin of the Connecticut supreme 
court in the Hoxie case, in which enforcement had 
been refused the act of Congress on the ground of its 
disharmony with "the policy of the State." Strangely 
unaware as the Connecticut court showed itself to be 
of the established canons of Constitutional Law, its 
view must after all be admitted to have been the in- 
evitable one if the reserved powers of the States limit 
national power. But, as I say, the Supreme Court of 
the United States no longer subscribes to this doc- 
trine. The theory of the Connecticut court was ac- 
cordingly swept aside, in the following words taken 
from the court's earlier opinion in Smith v. Alabama: 

"The grant of power to Congress to regulate com- 
merce ... is paramount over all legislative powers 
wrhich, in consequence of not having been granted to 
Congress, are resented to the States. It follows that any 
legislation of a State, although in pursuance of an ac- 
knowledged power reserved to it, which conflicts with the 
actual exercise of the power of Congress over the sub- 
ject of commerce, must give way before the supremacy 
of the national authority."" 

In the Minnesota Rate Cases the Court invited Con- 

•°I42U. S. 545 (1891)- 

"^Mondou V. N. Y., N. H., and H. R. R. Co v. U. S. 223 
U. S. 
^Simpson v. Shephard 230 U. S. 352. 
'•■124 U. S. 465, 473 (if 


gress to take over the business of regulating infra- 
State rates so far as might be necessary and proper 
to make effective its regulation of inter-State rates." 

And, as Marshall's words just quoted, indicate, 
the principles that determine the relation of Congress' 
power to State power also determine the relation of 
the national treaty-making power to State power. 
Certainly, no power falls more distinctly within the 
reserved powers of the States than the power to regu- 
late the tenure of real property. In this connection, 
note the language of Justice Field in United States 
v. Fox: 

"The power of the State to regulate the tenure of real 
property within her limits, and the modes of its acqui- 
sition and transfer, and the rules of its descent, and the 
extent to which testamentary disposition of it may be 
exercised by its owner, is undoubted."^" 

And again the language of Justice Washington in 

McCormick v. Sullivant: 

"The title and modes of disposition of real property 
within the States, whether inter vivos or testamentary, 
are not matters placed under the control of federal 

Yet the same judges, with one exception, who 
decided the McCormick case also decided Chirac v. 
Chirac^''; the same judges, with one exception, who 
decided United States v. Fox also decided Hauenstein 
v. Lynham^^ ; and the judge who wrote the opinion in 

" See especially J. Hughes' language at p. 399 of the Report. 
"94 U. S. 31S, 320. 
^° 10 Wheat. 192, 202. 
"2 Wheat. 2S9 (1817). 
"100 U. S. 483 (1879). 


the United States v. Fox again spoke for the court in 
Gcofroy v. Riggs}^ In each of these three cases the 
issue was the same; it lay between claimants to real 
estate whose right to the property involved was ad- 
mitted to be perfect under the local law and other 
claimants who asserted the right to claim the same 
property as heirs to it upon the basis of certain treaty 
provisions. In each case the decision of the United 
States Supreme Court, given unanimously, was in 
favor of the latter claimants; and the basis of the 
decision was in each case announced to be Article VI, 
par. 2. Later, reviewing these and similar deci- 
sions, Attorney-General Griggs stated the rule that 
they unmistakably establish : "The fact that a treaty 
provision anrmls and supersedes the law of a particu- 
lar State upon the same subject is no objection to the 
validity of the treaty."^'' 

In a word, what powers the States possess is a mat- 
ter of the utmost indi£ference in determining the scope 
of the treaty-making power of the United States. Or 
to put it otherwise, the United States has exactly the 
same range of power in making treaties that it would 
have if the States did not exist.^^ Let a matter arise 
that is of genuine international concern and the na- 

>"i33 U. S. 2S8 (1890). 

^22 Opins. Atty. Gen'l 214. 

^^ Of course the U. S. cannot, in view of its obligation to 
guarantee the States "a republican form of government" assume 
to control and direct the actual machinery of government within 
the States indefinitely. But that fact does not detract from 
the force of the statement in the text. For if there were no 
States, there would be no such machinery of government to 
control and direct to any extent. 


tional power to negotiate treaties with rejeretice to it 
and to give those treaties the force and effect of law 
of the land becomes perfected. 

At the present moment, I am informed from re- 
liable sources, an agreement is in process of negotiation 
with the Dominion of Canada which will have for its 
purpose the extension of the provisions of the recent 
Weeks-McLean Migratory Bird Law to the case of 
birds passing from Canada. It would be difficult to 
distinguish such a treaty in principle from one of the 
sort mentioned at the opening of this paper, for the 
State's police power with reference to its wild game is 
well settled.^^ The precedent will be the more precious 
from its origin with a State-rights Administration. 

^ See e.g., Geer v. Conn. i6i U. S. 519. Mr. Henry Chase in his 
recent volume on Game Protection seems to think that while the 
Weeks-McLean Act is possibly unconstitutional as invading the 
police powers of the States, a treaty covering the same matter 
would not be open to this objection. That is a great 
mistake. If the reserved powers of the States restrict Congress 
in the exercise of its powers, then also do they restrict the 
national treaty-making power in its capacity to make "law of 
the land". My own belief is that the Weeks-McLean 
Act is perfectly constitutional as an act "necessary and 
proper" to protect the federal timber reserves. The act is 
analogous to congressional legislation intended to repress 
crime within districts subject to Congress' exclusive power of 
legislation. The authors of crimes committed within such dis- 
tricts, forts, arsenals, etc., are often tried outside them, within 
State territory. But if a resident of a State should attempt to 
rescue the culprit in such a case he would be subject to federal 
law. Likewise, if a resident of a State should withhold informa- 
tion with reference to a crime committed within a district subject 
to Congress' exclusive power, he would be guilty, under the 
act of Congress, of misprision of felony, and punishable there- 
for. And examples might be multiplied : Cohens v. Va. 6 


The whole question, then, is wrapped up in the 
phrase "genuine international concern," and this, as 
I have indicated, is a thing ever advancing and de- 
veloping. What with cable, steamship, wireless tele- 
graphy, and inter-oceanic canals, the world to-day is 
astonishingly small and the consequence is that the 
nations can no longer live unto themselves in the way 
that was earlier possible. The rise of an international 
police power and of an international power of eminent 
domain, exercisable by the fitter members in the Family 
of Nations, is a development clear and palpable before 
our eyes. The development of uniform national legis- 
lation of social character, in pursuance of international 
agreement, is but another phase of the broader devel- 
opment of international solidarity. 

And it is the fundamental contention of this paper 
that the United States is competent to march abreast 
of this development.^^ 

Wheat. 264, 424-30. Congress, whatever of its powers it hap- 
pens to be exercising at any particular moment, is always the 
national legislature, and capable as such of giving its acts na- 
tion-wide operation, — so that they be passed in exercise of its 
constitutional powers. The only question with reference to the 
Migratory Bird Act is, then, whether its nation-wide oper- 
ation is a necessary and proper measure for the protection of 
national property of great value. Certainly, there can be no 
idispute about that. The efforts of the advocates of the law, 
however, to bring it within the "commerce" clause seem to me 
rather far-fetched. 

^ For further discussion of the questions above considered, 
see the writer's National Supremacy (Holt and Co., N. Y., 1913) ; 
also, his article on the Treaty-Making Power in the North Am. 
Rev. for June, 1914. 

(The list of cases indexed is incomplete.) 

Acts of Congress : Alien and Sedition Laws, S6 j Judiciary Act 
of 1801, 57; Mann "White Slave" Act, 163; Weeks-McLean 
Migratory Bird Act, 170-1. See Judiciary Act of 1789. 

Adams, John : Characterizes the Congress of the Confederation 
"a diplomatic body," 118; see Writs of Assistance Case. 

Articles of Confederation : Declared to be paramount to State 
laws, 40-1 ; character of government under, 83, 112-24 passim. 

Baldwin, C. J. (Conn.) : Doctrine of, in the Hoxie case, 167. 

Bancroft, Geo. H. : Note by, on Barton's pamphlet, 125-6. 

Barton, Wm. : Urges a continental convention (1781), 125. 

Benton, Th. H. : Influence of his Examination of the Dred 
Scott case, 141. 

Blackstone, Sir Wm. : Doctrine of Parliamentary Sovereignty, 

32-4, 52. 

Breckenridge, Sen. Jno. : States doctrine of departmental con- 
struction of the Constitution (1802), 58. 

Buchanan, Pres. : Participation of, in the Dred Scott decision, 


Calhoun, Jno. C. : Theory of the Union and the Constitution, 
82-4, 100-6; effect of doctrines on Constitutional Law, 166. 

Campbell, J.: Calhounist doctrines of, in Scott v. Sanford, 141. 

Cases: Ableman v. Booth, IS- Bayard v. Singleton, 39. Bow- 
man v. Middleton, 52. Brown v. Maryland, 139. Caldcr v. 
Bull, 53. Captain Streater's Case, 30-1 Chirac v. Chirac, 
168-9. Chisholm v. Georgia, gg. Commonwealth v. Caton, 73. 
Cohens v. Virginia, 6, 7, 138-9. Cooper v. Telfair, 53. Dr. Bon- 
ham's Case, 28-30, 68-9. Eakin v. Raub 68, 76. Employers' Lia- 
bility Cases, 166-7. Geofroy v. Riggs 169. Gibbons v. Ogden, 
165-6. Hauenstein v. Lynham, 168-9. Heyburn's Case, 50. 
Henderson v. New York, 166-7. Hepburn v. Griswold, 153. 
Holmes v. Walton, 72-3. Josiah Philips' Case, 71-2. Kam- 
per V. Hawkins, 52. Knox v. Lee, 153. McClung v. Silliman, 
8-9. McCormick v. Swllivant, 68. McCulloch v. Maryland, 99, 
161-2. Mclntire v. Wood, 173, 8-9. Marbwy v. Madison, i-io, 


174 INDEX 

60-1. Martin v. Hunter's Lessee, 99, 161-2. Martin v. Mott, 67, 
Ogden v. Blackledge, 53-4 Ogden v. Witherspoon, 53- -WJM- 
nesota Rate Cases, 166-7. Rahrer, in re, 166-7. Rutgers v. 
Waddington, 7Z- Scott v. Sanford, see article on Dred Scott 
Decision. Sinking Fund Cases, 153. Smith v. Alabama, 166-7. 
South Carolina v. United States, 161-2. ^jiwJ&Mry Caj^, 73. 
Trevett v. Weeden, 33-4, 74. United States v. Fo;ir, 168. C/m'- 
f^d States v. Hylton, 51. Winthrop v. Lechmere, 74-S- Writs 
of Assistance Case, 29-32. Wynehamer v. People, 149-51. 

Chase, C. J. : See Hepburn v. Griswold 

Chase, J. : Regards principle of separation of powers as merely 
"declaratory," 53. 

Catron, J. : Action in procuring the decision in S'foii v. ^aji- 
/orrf, 132 ; opinion of, in that case, 142-3. 

Citizenship: Source of, under the Constitution (1857), IS4-S- 

Coke, Sir Edw. : Theory of Fundamental Law and of Parlia- 
ment's power in relation thereto, 27-9; see Dr. Bonham's 

Common Law : As a source of national jurisdiction, 55. 

Congress : Debates in, respecting the establishment of the De- 
partment of Foreign Affairs (1789), 48-9; debate and pro- 
ceeding in, on the act repealing the Judiciary Act of i8or, 
57-9; debate in, on the first ten Amendments, 93-8; power of, 
in governing territories, 140-1 ; see Acts of Congress. 

Constitution of the United States : Art. Ill, § 2, 4-7, 14-5, 42 ; 
Art. IV, § 2, 143; same, § 3, 140; Art. VI, par. 2, 13-4, 43, 
164-8; considered as an act of popular revolution, 84-S, 98-9, 
106-8; canons of the liberal construction of, 161-2; see Pre- 
amble and Fifth Amendment. 

Constitutional Reaction (1780-87) : Phases and characteristic 
ideas of, 37-41. 

Constitutions : Basis of, in revolution, 34-5. 

Convention of 1787: Purposes of, 37-8, 164; see Judicial Review 
and Separation of Powers. 

Curtis, J.. Dissenting opinion of, in Scott v. Sanford, 151-2, 

Departmental Construction of the Constitution : Doctrine of, 
reviewed and criticized, 18-26, 66-8. 

Departmental Discretion: Doctrine of, 6o-i, 67. 

Dred Scott Case: Statement of facts in, 129-30; before the 

INDEX 175 

Supreme Court, 130-3; alleged dictum in, 133-40; the consti- 
tutional question in, 140-53; citizenship question in, 153-5; 
effect of decision in, 156-7. 

Dual Sovereignty : Theory of, stated, 155-6. 

Due Process of Law : Modern doctrine of, 65, 153-4. 

Field, J. . See Geofroy v. Riggs and United States v. Fox. 

Fifth Amendment: Its operation as a general limitation on the 
powers of Congress, 147-54, passim. 

Franklin, Benj.: Albany Plan of, 115-6. 

Fundamental Law : Notion of, in relation to Parliament's power, 
see Coke. 

Grier, J. : Compliance of, in the Dred Scott case, 132. 

Griggs, Atty-Gen'l : On the supremacy of treaties, 169. 

Hamilton, Alex. : Argues for judicial review in the FederaHst, 
44; on ratification of the Constitution, 90-1 ; letter of, to Duane 
(Sept. 3, 1780), 114-5, 125. 

Hayne, Sen. : His view of the Constitution, in debate with 
Webster (1830), 81. 

Hobart, J. (Eng.) . Reiterates Coke's dictum in Dr. Bonham's 
Case, 30. 

Holt, C. J. (Eng.) : See Hobart. 

Instruction: Doctrine of, debated in Congress (1789), 97. 

Jackson, Pres. : Veto Message of, stating doctrine of depart- 
mental construction (July 10, 1832), 21. 

Jefferson, Pres.: Fears the federal judiciary (1801), 57. 

Judicial Independence: Rise of demand for (1783-87), 40. 

Judicial Law-Making : Considerations governing, 64. 

Judicial Review : Bibliographical note on, i ; various grounds 
assigned for, in relation to acts of Congress, 1-2; action of 
Convention of 1787 respecting, 9-17, 42-4; logical basis of, 
18-27, 63 ; general history of the idea before the adoption of 
the - Constitution, 27-44, 61-2; alleged precedents for, before 
1787, 71-5 ; reception of the idea in the State ratifying con- 
ventions, 65-6; establishment of, in relation to acts of Con- 
gress (1787-1803), 45-61; history of, in the States, 75-7; a 
paradox in representative government, 45; objections to, in 
1787, 46; Madison's vacillations respecting, 46-9, 55-7; Feder- 
alist support of (1802), 58-9; flexible basis of, today, 64-5 ; see 
Marbury v. Madison. 

Judiciary Act of 1789: Debate in Congress on, 55; Signifi- 
cance of 2Sth section of, 49; § 13, 4, 7-9; § 14, 8-9; § 11, 130. 

176 INDEX 

Legislative Power: Early broad view of, 36-7; mingled with 
judicial power, 69-71 ; rise of a more restiricted view of, 37-9. 

Lincoln, Abr. : Theory of the Union, 82; criticism of the Dred 
Scott decision, 66, 143. 

McKenna, J. : On purposes of national power, 163. 

McLaughlin, Prof. A. C. : Explanation given by, of judicial re- 
view, 18-24, passim. 

McLean, J.: Makes political capital of the Dred Scott case, 131- 

Madison, Jas. : Report of, to the Virginia legislature (1799), 
56, 103-4; on ratification of the Constitution, 89., 91-3, 107-8; 
compares Articles of Confederation and Constitution, 117; 
canon of constitutional construction respecting the relation 
of national to State power (1791), 165; see Judicial Review, 
Instruction, State Interposition, State Coercion, "State". 

Marshall, C. J. : Maxim of, for flexibile construction of the 
Constitution, 161 -2; construction by, of Art. VI, par. 2, of the 
Constitution, 166; see Marbury v. Madison, Ogden v. W'th- 
erspoon, Ogden v. Blackledge, Cohens v. Virginia, Gibbons v. 
Ogden, McCulloch v. Maryland. 

Martin, Luther : Genuine Information of, on the ratification of 
the Constitution, 90, 107. 

Mason, Geo. : See Writs of Assistance Case. 

Missouri Compromise: Eighth section of, 129; see Dred Scott 

National Power: Origin of, in the matter of taxation, 113-6; 
in relation to State power, 164-70. 

Nullification : See Secession, Calhoun. 

Obiter Dictum: Meaning of the term, especially in Constitu- 
tional Law, 123-9. 

Otis, Jas. : See Writs of Assistance Case. 

Parliament : See Coke, Blackstone, Smith. 

"People": Significance of term for Political Science (1787), 
34-S, 98-9; see article on "We, the People". 

PoHce Power : See National Power. 

Preamble : No part of the Constitution, 95 ; as a clue to 
constitutional interpretation, 163-4. 

President: Doctrine of the immunity of, from jurisdiction, 61. 

Property: Position of, in Constitutional Law before the Civil 
War, 148-50. 

Revolution: Theory of the right of (1787), loi, 106-8. 



Secession : No right of, under the original theory of the Con- 
stitution, loo-i. 

Separation of Powers: Place and meaning of the principle in 
the early State constitutions, 3S-7; relation of, to judicial re- 
view, 7, 8, 39; view taken of in the Convention of 1787, 41-2; 
recognized to be a legal principle, S3-4. 

Slaves: Recognized and protected as property by the Consti- 
tution, 145-6. 

Smith, Sir Th. : Theory of Parliament's power, 28. 

Stare Decisions: Application of, to constitutional decisions, 67-8. 

"State": Significance of term (1787-99), 98-9, 103. 

State Coercion : Urged by Madison and Pelatiah Webster, 123- 
S; rejected by the Convention of 1787, 125. 

State Interposition: Doctrine of, 81, 104. 

State Power : See National Power. 

Story, J.: Theory of the Constitution, 82; see Martin v. Hun- 
ter's Lessee. 

Strong, J. : See Knox v. Lee. 

Taney, C. J.: Opinion of, in Scott v. Sanford, criticized, 144-53. 

Taylor, Mr. Hannis : See article on Pelatiah Webster Myth. 

Treaties : Scope of national power in making, see article on 
Some Possibilities in the Way of Treaty-Making; some 
European conventions of a social character, 160. 

Virginia and Kentucky Resolutions (1798-99) : Doctrines of, 
55-6, 81 ; underlying fallacy of, 102-4. 

Virginia Plan (1787) : Not harmonious with the principle of the 
separation of powers, 41-2. 

Washington, J. : See McCormick v. Sullivant. 

Wayne, J. : Activity in procuring the Dred Scott decision, 132. 

Webster, Sen. D. : Refutes doctrine of departmental construc- 
tion (1832), 21-2; theory of, regarding the Constitution (1830), 


Webster, P. : Claims of, to be considered the originator of the 
Constitution considered, see article on The Pelatiah Webster 

"We, the People'' : Significance of phrase as used in the Con- 
stitution (1787), see article under this title. 

Wilson, Jas. : Theory of nature of the Constitution, 86-7; canon 
of constitutional construction (1787), 164. 

Date Due